An unpublished opinion of the North Carolina Court of Appeals does not constitute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

NO. COA13

– 677 NORTH CAROLINA COURT OF APPEALS Filed: 21 January 2014

STATE OF NORTH CAROLINA

v. Craven County No s . 11 CRS 50791, 12 CRS 1014 EDDIE TYRONE DAVIS , Defendant.
Appeal by d efendant 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, a n officer is entitled to make a brief investigatory stop when he knows a vehicle is in v iolation of North Carolina law because that stop is su pported by reasonable suspicion
. Where defendant flees a lawful encounter w ith 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 felon y classification s 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).
T he felony class level of an out

- of

- state felony convict ion 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 w hich is classified higher than C lass I. The facts tended to show that on the evenin g 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 lo st a white Ford Taurus during previous unrelated pursuits. Officer Welch ran the license plate number to determine the registered owner of the veh icle and learned that the vehicle was registered to a female. The driver and passenger of the vehicle, however, were both males. 1 Office r Welch also learned that the insurance on the vehicle had lapse d 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 confirme d 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, Of ficer Welch followed and activated his lights to conduct a traffic stop based o n 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 fi eld to an apartment build ing where he observed the driver enter an apartment. Upon reaching the apartment, Officer Welch found that
t he door was locked . A fter 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 foun d to contain three rock

shaped substances in clear plastic baggies
. T hese 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 pu blic 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 pu blic 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 1 14 months . Defendant appeals.

_______________________________________ On appeal, defendant r aises the following issues: w hether 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 l evel V I 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 fo r a motion to dismiss is whether

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substantial evidence existed “ (1) of each essential element of th e offense charged, or of a lesse r 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 t he victim was a p ublic 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 , 1 59 N.C. App. 28 4, 294 , 583 S.E.2d 606, 612

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(2001) ( citing N.C.G.S. § 14

– 223 ) . A lthough d efendant concedes to the first, secon d, fourth, and fifth elements, d efendant 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 o nly the owner of the vehicle could b e liable for; as such, only the owner of the vehicle could b e 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 wa s mispla ced. 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 t o 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 veh icle 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 sto p 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 O fficer Welch prior to attempting the stop, as opposed to the information known by defendant, the individ ua l being subjected to the stop. Id.
P rior 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 wa s a pick

- up order for the tags . Officer Welch also knew that defend ant was not the owner of the vehicle. Therefore, t he dispositive question is whether there was sufficient reasonable suspicion to conduct an investi gatory stop of defendant

- driver when the violation of N.C.G.S . § 20

– 313 imposes criminal liability on the ow ner of the vehicle.
In State v. Washington , this Court held that there was in sufficient 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 r ise to probable cause to search that person.” Id . at 676

— 7 7, 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 67 8, 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 al one, gave the deputies sufficient cause to stop defendant.”); State v. Edwards, 164 N.C. App. 130, 13 6, 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 init ially stopping defendant.” ).
Here , Officer Welch had a reasonable , articulable suspicion sufficient to stop defendant . Even though Officer Welch believed defendant was not th e 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
. T he 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 con duct 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, delayin g or obstructing Officer Welch while he was dischar g ing or attempting to discharge the duties of his office
. Whe n 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

— 3 0 ( citation omitted ) . F light from a lawful investigatory stop contributes to establ ishing probable cause that defendant is resisting or obstructing an officer in the discharge of his duties in violatio n of N.C.G.S . § 14

– 2 2 3. Id . Here, defendant fled from Officer Welch immedi ately 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
. D efendant’s actions constitute d resistance, delay, and obstruction of Office r 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 d e fendant’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 di scharge 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 wi thout justification or excuse. Because we find t hat Officer Welch was discharging or attempting to discharge a duty of his office, d efendant’s argument is overruled
. II.
D efendant next argues that the trial court erred in calculating his prior criminal record level for sentencing. We
agree. A tri al 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 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 c la ssifies 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 cl assified 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

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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 th e 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 fel ony 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, d efendant entered into a plea agreement with the State whereby he admitted to having at tained habitual offender status in exchange for the State not opposing sentencing in the low end of the mitigated range. Pursuant to this ag reement, defendant stipulated to ten prior offenses listed in the State’s prior record level wo rksheet which included six felony offenses from Florida. The State classified f ive of the six Florida offenses as Class I felonies on the worksheet. This Court has held that w here 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 t o having been convicted of five prior Florida offenses and to th eir classification as felonies was an effective stipulation
. Therefore, these five Florida felonies

were properly classified at the sta tutory 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, d efendant contends that “ [ w ] ithout evidence that these Florida offenses were felonies
. . . they would be treated as Class 3 misdemeanors.” De fendant’s argument as to the Class I felonies lacks merit for, as noted above, defendant’s stipulat ion 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 t he 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
t he prior conviction worksheet , the State sought to have a sixth

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Florida offense , “ F
- SE LL 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
C lass 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] s tatus, ” 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,
t he trial court then determined that defendant had a prior record level of VI and sente nced defendant to a term of 87

— 1 14 months. While under the circumstances it would appear that the trial court accepted the State’s contention that the Florida felony sale o f 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. § 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, 64 7 S.E.2d 473 , 474 (2007 ) (citations omitted) . However, in the instant case w e 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 classifi cation from a Class G to a Class I. Deducting

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two points from defendant’s prior record lev el 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 err or in fai ling to find the Florida statute sufficiently similar to North Car olina'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).