An unpublished opinion of the North Carolina Court of Appeals does not constitute 

controlling legal authority. Citation is disfavored, but may be permitted in 

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of 

Appellate Procedure.

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 
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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.
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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 
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defendant during the chase was found to contain three rockshaped 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 
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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 
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(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.
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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
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(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 
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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 
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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 
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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 15A1340.14(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. § 15A1340.14(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-ofstate 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 
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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-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 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 
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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 
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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 
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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. § 15A1340.14. 

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 
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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).