State v. Davis

An unpublished opinion of the North Carolina Court of Appeals does not constitute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