An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citatio n is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of A p p e l l a t e P r o c e d u r e .
NO. COA13–677
NORTH CAROLINA COURT OF APPEALS
Filed: 21 January 2014
STATE OF NORTH CAROLINA
v. Craven County Nos. 11 CRS 50791, 12 CRS 1014 EDDIE TYRONE DAVIS, Defendant.
Appeal by defendant from judgment and commitment entered 27
November 2012 by Judge Jack W. Jenkins in Craven County Superior
Court. Heard in the Court of Appeals 5 November 2013.
Attorney General Roy Cooper, by Assistant Attorney General G. Mark Teague, for the State.
Kimberly P. Hoppin for defendant-appellant.
BRYANT, Judge.
Even if the operator of a vehicle is not the owner, an
officer is entitled to make a brief investigatory stop when he
knows a vehicle is in violation of North Carolina law because
that stop is supported by reasonable suspicion. Where defendant
flees a lawful encounter with an officer who is discharging the -2-
duties of his office, this constitutes resisting a public
officer as proscribed by N.C. Gen. Stat. § 14–223. Where
defendant stipulates to the existence and felony classifications
of his prior out-of-state convictions, such convictions are
properly classified as Class I felonies pursuant to the
statutory default level set by N.C. Gen. Stat. § 15A-1340.14(e).
The felony class level of an out-of-state felony conviction may
be raised from a default level of Class I only upon the trial
court’s finding that the out-of-state conviction is
substantially similar to a North Carolina felony which is
classified higher than Class I.
The facts tended to show that on the evening of 4 March
2011, while parked at the Five Point gas station on 1210 Broad
Street, Officer David Welch of the New Bern Police Department
observed a white Ford Taurus park at the gas station. The
officer’s attention was drawn to the vehicle because he had lost
a white Ford Taurus during previous unrelated pursuits.
Officer Welch ran the license plate number to determine the
registered owner of the vehicle and learned that the vehicle was
registered to a female. The driver and passenger of the vehicle,
however, were both males.1 Officer Welch also learned that the
insurance on the vehicle had lapsed and that there was a North
1 Officer Welch testified at trial that, based on his observations of the vehicle, both occupants were male. Officer Welch’s assumption that both occupants were male was confirmed when the vehicle was stopped. -3-
Carolina Department of Motor Vehicles pick-up order for the
white Ford Taurus.
When the vehicle pulled out of the gas station, Officer
Welch followed and activated his lights to conduct a traffic
stop based on the lapsed insurance and pick-up order.
Immediately upon pulling over, the driver got out of the car and
fled on foot from Officer Welch. Officer Welch chased the
driver and shouted out to him that he was under arrest. During
the chase Officer Welch observed the driver throw a white
plastic bottle, which was retrieved by Officer Welch while he
continued to follow the driver.
Officer Welch chased the driver through a large field to an
apartment building where he observed the driver enter an
apartment. Upon reaching the apartment, Officer Welch found that
the door was locked. After knocking, a woman answered and
allowed him inside. Once inside, Officer Welch found a man lying
in a bed breathing heavily. Officer Welch was able to identify
the man as the driver who fled. Despite Officer Welch’s
presence in the bedroom, the man remained on the bed either
sleeping or pretending to be asleep. Officer Welch called out
to him, but the man was unresponsive. Officer Welch then
grabbed the man’s wrist; at which point, the man became
immediately alert. The man, defendant Eddie Tyrone Davis
(“defendant”), was arrested. The pill bottle thrown by -4-
defendant during the chase was found to contain three rock-
shaped substances in clear plastic baggies. These substances
were later determined to be 0.3 grams of cocaine base.
On 14 November 2011, defendant was indicted for possession
with intent to sell and deliver cocaine, resisting a public
officer, and possession of drug paraphernalia. On 26 November
2012, this matter came before the Honorable Jack W. Jenkins in
Superior Court of Craven County. On 27 November 2012, a jury
found defendant guilty of possession of cocaine, resisting a
public officer, and possession of drug paraphernalia. During
sentencing, defendant admitted to attaining the status of
habitual felon; defendant was sentenced to a mitigated term of
87 to 114 months. Defendant appeals.
_______________________________________
On appeal, defendant raises the following issues: whether
the trial court erred by (I) denying defendant’s motion to
dismiss the charge of resisting an officer; and (II) sentencing
defendant as a prior record level VI based on his previous
convictions from another jurisdiction.
I.
Defendant first argues that the trial court erred in
denying his motion to dismiss the charge of resisting an officer
due to insufficient evidence. We disagree.
The standard of review for a motion to dismiss is whether -5-
substantial evidence existed “(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. Sinclair, 191 N.C. App. 485, 488, 663 S.E.2d 866, 869—
70 (2008) (citations omitted). “Substantial evidence is that
amount of relevant evidence necessary to persuade a rational
juror to accept a conclusion.” Id. at 488, 663 S.E.2d at 870.
Since this is an appeal from the denial of a motion to dismiss,
the evidence is viewed “in the light most favorable to the
State, giving the State the benefit of all reasonable
inferences.” Id.
The elements of resisting a public officer, as proscribed
in N.C. Gen. Stat. § 14–223, are:
(1) that the victim was a public officer;
(2) that the defendant knew or had reasonable grounds to believe that the victim was a public officer;
(3) that the victim was discharging or attempting to discharge a duty of his office;
(4) that the defendant resisted, delayed, or obstructed the victim in discharging or attempting to discharge a duty of his office; and
(5) that the defendant acted willfully and unlawfully, that is intentionally and without justification or excuse.
State v. Dammons, 159 N.C. App. 284, 294, 583 S.E.2d 606, 612 -6-
(2001) (citing N.C.G.S. § 14–223).
Although defendant concedes to the first, second, fourth,
and fifth elements, defendant identifies the third element as
the reason for the trial court’s error. Defendant argues that
the third element was not satisfied by Officer Welch’s unlawful
stop because the lapsed insurance and pick-up order were
violations that only the owner of the vehicle could be liable
for; as such, only the owner of the vehicle could be engaged in
the criminal activity required for reasonable suspicion.
Defendant contends that since he is not the owner of the
vehicle, Officer Welch’s reasonable suspicion formed as a result
of the violation of N.C. Gen. Stat. § 20–313 (2011)2 was
misplaced. Thus, we must determine whether the stop was lawful
and whether defendant in fact resisted, delayed or obstructed
2 Pursuant to N.C.G.S. § 20–313, “Operation of motor vehicle without financial responsibility a misdemeanor,”
(a) [A]ny owner of a motor vehicle registered or required to be registered in this State who shall operate or permit such motor vehicle to be operated in this State without having in full force and effect the financial responsibility required by this Article shall be guilty of a Class 3 misdemeanor.
(b) Evidence that the owner of a motor vehicle registered or required to be registered in this State has operated or permitted such motor vehicle to be operated in this State, coupled with proof of records of the Division of Motor Vehicles indicating that the owner did not have financial responsibility applicable to the operation of the motor vehicle in the manner certified by him for purposes of G.S. 20- 309, shall be prima facie evidence that such owner did at the time and place alleged operate or permit such motor vehicle to be operated without having in full force and effect the financial responsibility required by the provisions of this Article. -7-
Officer Welch in discharging the duties of his office.
Sinclair, 191 N.C. App. at 489, 663 S.E.2d at 870.
For a brief investigatory stop to be lawful, an officer
must have a reasonable suspicion, “based on specific and
articulable facts, as well as the rational inferences from those
facts, as viewed through the eyes of a reasonable, cautious
officer, guided by his experience and training.” State v.
Washington, 193 N.C. App. 670, 682, 668 S.E.2d 622, 629 (2008)
(citation omitted). Therefore, we examine the information known
by Officer Welch prior to attempting the stop, as opposed to the
information known by defendant, the individual being subjected
to the stop. Id.
Prior to pulling defendant over, Officer Welch knew that
the insurance on the vehicle had lapsed in violation of N.C.G.S.
§ 20–313, and that there was a pick-up order for the tags.
Officer Welch also knew that defendant was not the owner of the
vehicle. Therefore, the dispositive question is whether there
was sufficient reasonable suspicion to conduct an investigatory
stop of defendant-driver when the violation of N.C.G.S. § 20–313
imposes criminal liability on the owner of the vehicle.
In State v. Washington, this Court held that there was
insufficient probable cause to arrest someone that was
operating, but did not own, an unregistered vehicle with expired
insurance. Washington, 193 N.C. App. at 678, 668 S.E.2d at 627 -8-
(emphasis added). In Washington, where the owner of the vehicle
was the passenger, this Court recognized the well-established
rule that “a person’s mere propinquity to others independently
suspected of criminal activity does not, without more, give rise
to probable cause to search that person.” Id. at 676—77, 668
S.E.2d at 626 (citations omitted). However, this Court also
held that the officer “had the right to make a brief
investigatory stop of the defendant . . . based on his operation
of a motor vehicle with no insurance and with an expired
registration plate.” Id. at 678, 668 S.E.2d. at 627 (citations
omitted); see also State v. Johnson, 186 N.C. App. 673, 675, 651
S.E.2d 907, 908 (2007) (“The improper tags, standing alone, gave
the deputies sufficient cause to stop defendant.”); State v.
Edwards, 164 N.C. App. 130, 136, 595 S.E.2d 213, 218 (2004)
(“[T]hat defendant's vehicle had an expired Illinois
registration plate . . . was sufficient in and of itself to
warrant initially stopping defendant.”).
Here, Officer Welch had a reasonable, articulable suspicion
sufficient to stop defendant. Even though Officer Welch
believed defendant was not the registered owner of the vehicle,
Officer Welch could still conduct an investigatory stop: the
operation of the vehicle without proper insurance was a
violation of N.C.G.S. § 20–313. The lapse in insurance in
violation of N.C.G.S. § 20–313 and pick-up order by the DMV of -9-
the vehicle constitute reasonable suspicion to conduct an
investigatory stop. Accordingly, Officer Welch’s investigatory
stop was supported by reasonable suspicion and was, therefore,
lawful.
As the investigatory stop was lawful, we next determine
whether defendant’s conduct constituted resisting, delaying or
obstructing Officer Welch while he was discharging or attempting
to discharge the duties of his office.
When an investigatory stop is lawful, the subject’s
encounter with the officer is not consensual and the subject
does not have a right to resist. Washington, 193 N.C. App. at
682, 668 S.E.2d at 629—30 (citation omitted). Flight from a
lawful investigatory stop contributes to establishing probable
cause that defendant is resisting or obstructing an officer in
the discharge of his duties in violation of N.C.G.S. § 14–223.
Id.
Here, defendant fled from Officer Welch immediately upon
stopping the vehicle, quickly entered an apartment and locked
the door, and then pretended to be asleep only responding to
Officer Welch when Officer Welch grabbed his wrist. Defendant’s
actions constituted resistance, delay, and obstruction of
Officer Welch as he attempted to stop a vehicle being operated
without proper insurance and seize the license plate tag
pursuant to the DMV pick-up order. We acknowledge defendant’s -10-
argument that his flight cannot retroactively provide reasonable
suspicion for Officer Welch to perform the stop; however,
defendant’s flight from a lawful investigative stop is
sufficient evidence of resisting or obstructing an officer in
the discharge of his duties.
Again, we note defendant does not challenge the other
elements of resisting a public officer: that Officer Welch was a
police officer; that defendant knew or had reasonable grounds to
believe that Officer Welch was a public officer; that defendant
resisted, delayed, or obstructed Officer Welch in discharging or
attempting to discharge a duty of his office; and that defendant
acted willfully and unlawfully, that is intentionally and
without justification or excuse. Because we find that Officer
Welch was discharging or attempting to discharge a duty of his
office, defendant’s argument is overruled.
II.
Defendant next argues that the trial court erred in
calculating his prior criminal record level for sentencing. We
agree.
A trial court’s determination of a defendant’s prior record
level for sentencing is a conclusion of law that is reviewed de
novo. State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39,
44 (2007). This determination is preserved for appeal -11-
regardless of whether the defendant objects at the sentence
hearing. N.C. Gen. Stat. §§ 15A-1446(d)(5), (d)(18) (2011).
Under North Carolina General Statutes, section 15A-
1340.14(a), “[t]he 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 that the court . . . finds
to have been proved in accordance with this section.” N.C. Gen.
Stat. § 15A-1340.14(a) (2011). In classifying prior convictions
from another jurisdiction,
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 . . . . 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.
Id. § 15A-1340.14(e) (2011). Pursuant to N.C. Gen. Stat. § 15A-
1340.14(f), a defendant’s prior convictions may be proven by:
“(1) Stipulation of the parties[.]” Id. § 15A-1340.14(f)
(2011). “The rules for proving the proper number of prior
record level points that should be assigned to specific out-of-
state convictions differ from those applicable to in-state
convictions . . . .” State v. Bohler, 198 N.C. 631, 634, 681
S.E.2d 801, 804 (2009). "[T]he question of whether a conviction -12-
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." State v. Hanton, 175 N.C. App.
250, 255, 623 S.E.2d 600, 604 (2006). As such, "[s]tipulations
as to questions of law are generally held invalid and
ineffective, and not binding upon the courts, either trial or
appellate." State v. Prevette, 39 N.C. App. 470, 472, 250
S.E.2d 682, 683 (1979) (citations omitted).
Thus, while the trial court may not accept a stipulation to the effect that a particular out-of-state conviction is "substantially similar" to a particular North Carolina felony or misdemeanor, it may accept a stipulation that the defendant in question has 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.
Bohler, 198 N.C. at 637—38, 681 S.E.2d at 806.
Here, defendant entered into a plea agreement with the
State whereby he admitted to having attained habitual offender
status in exchange for the State not opposing sentencing in the
low end of the mitigated range. Pursuant to this agreement,
defendant stipulated to ten prior offenses listed in the State’s
prior record level worksheet which included six felony offenses
from Florida. The State classified five of the six Florida
offenses as Class I felonies on the worksheet. This Court has
held that where the State classifies an out-of-state felony -13-
conviction as a Class I felony, rather than as a higher class
level felony, the statutory default felony level of Class I set
by N.C.G.S. § 15A-1340.14(e) is met. See State v. Hinton, 196
N.C. App. 750, 755, 675 S.E.2d 672, 675 (2009). Accordingly,
defendant’s stipulation to having been convicted of five prior
Florida offenses and to their classification as felonies was an
effective stipulation. Therefore, these five Florida felonies
were properly classified at the statutory default level as Class
I felonies.
Defendant also argues that the State presented insufficient
evidence that his prior offenses from Florida were felonies or
were substantially similar to North Carolina offenses.
Specifically, defendant contends that “[w]ithout evidence that
these Florida offenses were felonies . . . they would be treated
as Class 3 misdemeanors.” Defendant’s argument as to the Class
I felonies lacks merit for, as noted above, defendant’s
stipulation to the existence of the prior out-of-state
convictions on the worksheet presented by the State showing the
prior convictions to be felonies constituted sufficient evidence
that these out-of-state offenses could be classified as class I
felonies under the default rules of N.C.G.S. § 15A-1340.14(e).
However, we agree with defendant that the trial court erred
in accepting a sixth Florida offense as a Class G felony. On
the prior conviction worksheet, the State sought to have a sixth -14-
Florida offense, “F-SELL COCAINE,” classified at a higher level
as a Class G felony. To determine whether the out-of-state
offense and the North Carolina offense are “substantially
similar,” warranting classification higher than the default
Class I felony designation, the trial court “should examine
copies of the other state’s statutes, and compare their
provisions to the criminal laws of North Carolina.” State v.
Claxton, __ N.C. App. __, __, 736 S.E.2d 603, 608 (2013)
(citation, quotation, brackets, and ellipsis omitted).
In support of its classification of “sale of
cocaine . . . as a class G [felony],” the State submitted a copy
of the applicable Florida statute to the trial court for its
examination of “the elements of the charges . . . used to create
[defendant’s] status,” commenting that elements of the charges
in the Florida statute “would be substantially similar to our
elements here in our state.” After receiving a copy of the
Florida statute and the State’s prior record level worksheet,
the trial court then determined that defendant had a prior
record level of VI and sentenced defendant to a term of 87—114
months. While under the circumstances it would appear that the
trial court accepted the State’s contention that the Florida
felony sale of cocaine conviction is equivalent to a North
Carolina Class G felony, the transcript reveals the trial court
made no actual finding of substantial similarity as to this -15-
particular offense. Moreover, the prior record level worksheet
attached to the order of judgment and commitment has an empty
box next to the following wording: “For each out-of-state
conviction listed in Section V on the reverse, the [trial court]
finds by a preponderance of the evidence that the offense is
substantially similar to a North Carolina offense and that the
North Carolina classification assigned to this offense in
Section V is correct.” The lack of a formal finding by the
trial court during the sentencing hearing, combined with the
unchecked box on the worksheet, confirms that the trial court
failed to make a finding of substantial similarity. Therefore,
we must thus find that the trial court erred in determining
defendant’s prior record level pursuant to N.C.G.S. § 15A-
1340.14.
Where the trial court has erred in determining a
defendant’s prior record level, “[t]his Court applies a harmless
error analysis to improper calculations of prior record level
points.” State v. Lindsay, 185 N.C. App. 314, 315—16, 647
S.E.2d 473, 474 (2007) (citations omitted). However, in the
instant case we cannot say this error was harmless, as the trial
court’s failure to make a finding of substantial similarity
between the Florida and North Carolina offenses of sale of
cocaine affects two prior record level points by dropping the
felony’s classification from a Class G to a Class I. Deducting -16-
two points from defendant’s prior record level total of 19
points leaves 17 points which qualifies as a prior record level
V, a lower level than defendant’s sentencing level of
VI. Therefore, the error in failing to find the Florida statute
sufficiently similar to North Carolina's sale of cocaine statute
was not harmless since defendant would be considered a lower
level offender. See id. (holding that the amount of deducted
points must affect the defendant's record level to require a
remand for a new sentencing hearing). Therefore, we reverse and
remand for a new sentencing hearing.
Affirmed in part, reversed and remanded in part.
Judges McGEE and STROUD concur.
Report per Rule 30(e).