State v. Davis

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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, 1014 12 CRS 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 -2duties of officer his as office, proscribed this by constitutes N.C. Gen. resisting Stat. § a public 14 223. Where defendant stipulates to the existence and felony classifications of his properly prior out-of-state classified as convictions, Class I such felonies convictions pursuant to are 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 substantially that similar to the a out-of-state North Carolina conviction felony which is 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. -3Carolina 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 driver and shouted out to him that he was under arrest. the chase Officer Welch observed the driver throw the During 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. the man as the driver Officer Welch was able to identify who fled. Despite Officer Welch s presence in the bedroom, the man remained on the bed either sleeping or pretending to be asleep. to him, grabbed but the the man s immediately man alert. ( defendant ), was was Officer Welch called out unresponsive. wrist; at The man, arrested. which point, defendant The Officer pill the Eddie Welch then man became Tyrone Davis bottle thrown by -4defendant during the chase was found to contain shaped substances in clear plastic baggies. three rock- 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. sentencing, defendant admitted to attaining the During 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 the trial court previous convictions from another jurisdiction. I. Defendant first argues that 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 -5substantial 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 State, is giving viewed the in State the light most the benefit of favorable all to the 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 reasonable grounds to believe that victim was a public officer; (3) that the attempting to office; had the victim was discharging or discharge a duty of his (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 Defendant activity contends that required for since is he reasonable not the suspicion. owner of the vehicle, Officer Welch s reasonable suspicion formed as a result of the violation misplaced. of N.C. Gen. Stat. § 20 313 (2011)2 was 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. 20309, 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. -7Officer 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 insufficient probable cause to arrest someone there was 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 right that the officer had the to make a brief investigatory stop of the defendant . . . based on his operation of a motor vehicle with registration plate. no insurance and with an expired 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 violation of the vehicle N.C.G.S. § without 20 313. proper The lapse insurance in was a insurance in violation of N.C.G.S. § 20 313 and pick-up order by the DMV of -9the 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. actions constituted resistance, delay, and Defendant s obstruction of Officer Welch as he attempted to stop a vehicle being operated without proper insurance and seize pursuant to the DMV pick-up order. the license plate tag We acknowledge defendant s -10argument that his flight cannot retroactively provide reasonable suspicion for defendant s Officer flight Welch from to a perform lawful the stop; investigative however, 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, without justification or excuse. that is intentionally and 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. 44 State v. Fraley, 182 N.C. App. 683, 691, 643 S.E.2d 39, (2007). This determination is preserved for appeal -11regardless hearing. of whether the defendant objects at the sentence 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. Stat. § 15A-1340.14(a) (2011). N.C. Gen. 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 (2011). The of the parties[.] rules for proving the Id. proper § 15A-1340.14(f) number of prior record level points that should be assigned to specific out-ofstate convictions differ convictions . . . . S.E.2d 801, 804 (2009). from those applicable to in-state State v. Bohler, 198 N.C. 631, 634, 681 "[T]he question of whether a conviction -12under 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 to questions of law are As such, "[s]tipulations 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 with the 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-ofstate 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 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. held that where the State classifies an This Court has out-of-state felony -13conviction 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 for, felonies stipulation lacks to merit the existence as of noted the above, prior defendant s 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 -14Florida offense, F-SELL COCAINE, classified at a higher level as a Class G felony. offense and similar, Class I the copies North warranting felony of To determine whether the out-of-state Carolina classification designation, the offense other the state s are higher trial than the default should court statutes, substantially examine and compare provisions to the criminal laws of North Carolina. Claxton, __ N.C. App. __, __, 736 S.E.2d 603, their State v. 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 -15particular 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 Section V is correct. assigned to this offense in 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. S.E.2d State 473, 474 v. Lindsay, (2007) 185 N.C. (citations App. omitted). 314, 315 16, However, in 647 the instant case we cannot say this error was harmless, as the trial court s failure between the to Florida make and a finding North of Carolina substantial offenses similarity 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 -16two points from defendant s prior record level total of 19 points leaves 17 points which qualifies as a prior record level V, VI. a lower level than defendant s sentencing level of 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).

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