An unpublished opinion of the North Carolina Court of Appeals does not constitute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).
