No. COA13-672 ELEVENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA ))

v. ) From Lee)

EDWARD EARL MULDER )

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DEFENDANT-APPELLANT’S BRIEF

****************************************************

INDEX

TABLE OF CASES AND AUTHORITIES.............................iii

ISSUES PRESENTED...............................................................1

STATEMENT OF THE CASE..................................................2

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW.....................................................................................3

STATEMENT OF THE FACTS................................................3

ARGUMENT..............................................................................7

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, REQUIRING ARREST OF JUDGMENT, WHEN IT ENTERED JUDGMENT AGAINST MR. MULDER FOR SPEEDING AND RECKLESS DRIVING BECAUSE THOSE CRIMES WERE LESSER INCLUDED CRIMES OF THE CHARGED OFFENSE OF FELONY FLEEING TO ELUDE ARREST................................................................7

Standard of Review................................................7

Issue Preserved.......................................................7

Argument................................................................8

II. IN THE ALTERNATIVE, MR. MULDER’S CONVICTIONS FOR SPEEDING AND RECKLESS DRIVING MUST BE VACATED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE DISTINGUISHING THOSE CRIMES FROM THE TWO AGGRAVATING FACTORS USED TO CONVICT MR. MULDER OF FELONY FLEEING TO ELUDE ARREST................................................12

Standard of Review..............................................12

Argument..............................................................13

CONCLUSION.........................................................................19

CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)......................................................................................20

CERTIFICATE OF FILING AND SERVICE.........................20

ii

TABLE OF CASES AND AUTHORITIES

CASES

Brown v. Ohio, 432 U.S. 161, 53 L.Ed.2d 187 (1977)..............................9

In re A.W., 209 N.C. App. 596, 706 S.E.2d 305 (2011)...................14

N.C. Department of Environment and Natural Resources v. Carroll, 358 N.C. 649, 559 S.E.2d 888 (2004)..........7, 13

North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656 (1969)..............................9

Patton v. North Carolina, 381 F.2d 636 (4th Cir 1967)..............................................9

State v. Bagley, 183 N.C. App. 514, 644 S.E.2d 615 (2007)...................12

State v. Collins, 334 N.C. 54, 431 S.E.2d 188 (1993)..............................10

State v. Dickens, 162 N.C. App. 632, 592 S.E.2d 567 (2004)...................12

State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986)..............................9

State v. Gayton-Barbosa, 197 N.C. App. 129, 676 S.E.2d 586 (2009)...................14

State v. Hedgepeth, 165 N.C. App. 321, 598 S.E.2d 202, disc. rev. denied, 359 N.C. 193, 607 S.E.2d 656 (2004)............................10

iii

State v. McAllister, 138 N.C. App. 252, 530 S.E.2d 859, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000)..............................9

State v. McGaha, 306 N.C. 699, 295 S.E.2d 449 (1982)..............................7

State v. Richardson, 279 N.C. 621, 185 S.E.2d 102 (1971)............................10

State v. Sellers, 273 N.C. 641, 161 S.E.2d 15 (1968)................................8

State v. Stocks, 319 N.C. 437, 355 S.E.2d 492 (1987)............................14

State v. Vause, 328 N.C. 231, 400 S.E.2d 57 (1991)..............................12

State v. Weaver, 306 N.C. 629, 295 S.E.2d 375 (1982)............................10

State v. Wilson, 128 N.C. App. 688, 497 S.E.2d 416 (1998).....................8

State v. Wilson, 340 N.C. 720, 459 S.E.2d 192 (1995)..............................7

STATUTES

N.C. Gen. Stat. § 7A-27(b) (2013).............................................3

N.C. Gen. Stat. § 15A-1340.16(d) (2013)..........................13, 15

N.C. Gen. Stat. § 20-140 (2013).........................................11, 15

N.C. Gen. Stat. § 20-141(j1) (2013)...................................11, 15

iv

N.C. Gen. Stat. § 20-141.5 (2013)......................................10, 14

N.C. Gen. Stat. §15A-1444(a) (2013)........................................3

OTHER AUTHORITIES

N.C. R. App. P. 2......................................................................14

N.C. R. App. P. 10(a)(3).....................................................13, 14

v

No. COA13-672 ELEVENTH JUDICIAL DISTRICT

NORTH CAROLINA COURT OF APPEALS

****************************************************

STATE OF NORTH CAROLINA ))

v. ) From Lee)

EDWARD EARL MULDER )

****************************************************

DEFENDANT-APPELLANT’S BRIEF

****************************************************

ISSUES PRESENTED

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR, REQUIRING ARREST OF JUDGMENT, WHEN IT ENTERED JUDGMENT AGAINST MR. MULDER FOR SPEEDING AND RECKLESS DRIVING BECAUSE THOSE CRIMES WERE LESSER INCLUDED CRIMES OF THE CHARGED OFFENSE OF FELONY FLEEING TO ELUDE ARREST?

II. WHETHER, IN THE ALTERNATIVE, MR. MULDER’S CONVICTIONS FOR SPEEDING AND RECKLESS DRIVING MUST BE VACATED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE DISTINGUISHING THOSE CRIMES FROM THE AGGRAVATING FACTORS USED TO CONVICT MR. MULDER OF FELONY FLEEING TO ELUDE ARREST?

STATEMENT OF THE CASE

This case came on for trial at the 8 October 2012 Criminal Session of Lee

County Superior Court before Superior Court Judge Carl R. Fox on indictments

charging Mr. Mulder with five counts of assault with a deadly weapon on a

governmental official, two counts of violation of a domestic violence protective

order, felony fleeing to elude arrest, burglary, failure to heed light or siren, reckless

driving, speeding, littering, failure to maintain lane control and injury to personal

property. (Rpp. 26-38)1 On 15 October 2012, the jury returned verdicts finding

Mr. Mulder guilty of the lesser included offense of misdemeanor breaking and

entering rather than the charged burglary. As for the remaining charges, the jury

returned verdicts finding Mr. Mulder guilty. (Rpp. 93-104)

That same day, Judge Fox consolidated two counts of assault with a deadly

weapon on a government official in 11 CRS 50053, and Mr. Mulder was sentenced

to 15 to 18 months imprisonment. (Rpp. 107-108) The remaining three charges of

assault with a deadly weapon on a government official were consolidated in 11

CRS 50051, and Mr. Mulder was sentenced to 19 to 23 months imprisonment, set

to run at the expiration of 11 CRS 50053. (Rpp. 109-110) Judge Fox consolidated

the felony fleeing to elude arrest, failure to heed light or siren, reckless driving,

speeding, littering and failure to maintain lane control in 11 CRS 50055, and Mr.

Mulder was sentenced to 6 to 8 months imprisonment, set to run at the expiration 1 The Record on Appeal will be referred to as “R.” The trial transcript will be referred to as “T.”

2

of 11 CRS 50051. (Rpp. 111-113) Lastly, Judge Fox consolidated the two charges

of violating a domestic violence protective order, misdemeanor breaking and

entering and injury to personal property in 11 CRS 277, and Mr. Mulder was

sentenced to 75 days imprisonment, set to run at the expiration of 11 CRS 50055.

(Rpp. 114-115) On 15 October 2012, Mr. Mulder gave oral notice of appeal in

open court. (Rpp. 116-117; Tpp. 480-481)

STATEMENT OF THE GROUNDS FOR APPELLATE REVIEW

Mr. Mulder appeals, pursuant to N.C. Gen. Stat. §§ 7A-27(b) and 15A-

1444(a), from a final judgment of Lee County Superior Court.

STATEMENT OF THE FACTS

Mr. Mulder and Ms. Brenda Swann knew each other for about seven years

prior to January 2011. They enjoyed each others’ company and at one point had a

dating relationship. The relationship ended. (Tp. 74) Ms. Swann sought and

obtained a Domestic Violence Protective Order against Mr. Mulder for both herself

and her son, John Pridgen. (Tp. 84) The DVPO was in effect on the night of the

incident. (Tpp. 51-52)

On 6 January 2011, Pridgen and his mother, Ms. Swann, were watching TV

at home—Swann in the bedroom and Pridgen in the living room. Ms. Swann came

out and asked Pridgen if he heard a noise, and he said he did not hear anything. A

few minutes later, he heard a loud bang and went to the front door to investigate.

3

Pridgen testified that he saw Mr. Mulder, with a ski mask above his head, beating

on Ms. Swann’s car with a hammer. (Tpp. 54-55)

Pridgen walked outside and asked Mr. Mulder what he was doing.

According to Pridgen, Mr. Mulder turned to face him, tried to pull the ski mask

down and started coming at Pridgen. Mr. Pridgen was concerned for Ms. Swann’s

safety, so he went back inside the house and tried to lock the front door. (Tp. 56)

Pridgen testified that Mr. Mulder stuck his hand in the door while Pridgen was

trying to close it. The struggle lasted about ten seconds. Pridgen told Mr. Mulder

to get out and told Ms. Swann to call the police. Pridgen shut the door and Mr.

Mulder left. The police arrived about 2-3 minutes later. (Tpp. 57-60) Pridgen told

the officer who arrived that Mr. Mulder left in champagne-colored Mercury Sable.

(Tp. 105)

Sergeant Scott Norton of the Sanford Police Department was on patrol on

Hawkins Avenue when he heard a call come through the radio regarding a

champagne-colored Mercury Sable. A few minutes later, Sgt. Norton saw a car

fitting the description and ran the tag number which came back registered to Mr.

Mulder. (Tp. 150) Sgt. Norton activated his blue lights and sirens on McGill

Street. According to Sgt. Norton, Mr. Mulder turned around, swerved into

someone’s yard and then began accelerating rapidly, jumping over the curb. (Tp.

153)

4

The car then turned left on Lawrence Street, and Sgt. Norton radioed that he

was in pursuit because Mr. Mulder was not yielding to lights or siren. At one

point, Mr. Mulder stopped on a bridge as if to surrender, and Norton began to get

out of his car. However, Mr. Mulder then accelerated toward Horner Blvd. At the

intersection, according to Norton, it appeared that Mr. Mulder was “swerving as if

trying to hit people . . . just innocent people on the highway.” (Tp. 154)

Several other police cars joined in the pursuit. At one point, Sgt. Norton

planned to pass Mr. Mulder “to box him in,” but once Sgt. Norton began the

attempt, Mr. Mulder allegedly swerved at Norton, as if trying to hit him. (Tp. 155)

Eventually, the pursuit continued on Highway 1 where the vehicles reached speeds

of 100 mph. The speed limit was 60 or 65 mph and the officers’ lights and sirens

were on the entire time. (Tpp. 154-56) The pursuit then continued onto the new

bypass to 421 where, at the San Lee Overpass, several officers saw Mr. Mulder

throw some papers and other objects out of the window. (Tpp. 109, 157, 226-227)

One of the officers later retrieved a black ski mask from that area. (Tpp. 112-113)

Mr. Mulder then took the Kelly Drive exit. Sgt. Norton noticed that Officer

Quick, a uniformed officer in a black and white police car with lights and sirens

on, was coming down Kelly Drive towards the pursuit from the opposite direction.

(Tp. 158) Mr. Mulder, as he exited, swerved and over-corrected, going on the left-

hand side of the road, then braked, and came back across through a culvert.

5

Officer Quick and Sgt. Norton attempted to box Mr. Mulder in, and Mr. Mulder

accelerated and hit Officer Quick’s car. (Tp. 159) At that point, it appeared to

Norton that Mr. Mulder was going to keep going so Sgt. Norton accelerated and

rammed Mr. Mulder’s car. (Tp. 160)

Two other officers, Officers Kidd and Beasley, arrived shortly thereafter.

All officers got out of their cars to take Mr. Mulder into custody. As Sgt. Norton

and Officer Quick approach each side of Mr. Mulder’s car, Norton on the driver

side and Quick on the passenger side, Mr. Mulder put the car into reverse and

accelerated while the two officers were holding onto the car. Officers Kidd and

Beasley were walking up behind Mr. Mulder’s car when it was put into reverse.

Officer Quick then reached into the car window, put the car into ‘Park,’ and took

the keys. (Tpp. 161-163) All four officers then pulled Mr. Mulder out of the car,

wrestled him to the ground and handcuffed him. Mr. Mulder sustained serious

injuries to his face and body, but air bags did not deploy during the vehicle

collisions. (Rpp. 43-44; Tpp. 204-208)

At trial, defense counsel made a motion to dismiss the charge of first-degree

burglary and one of the two charges of assault with a deadly weapon on Officer

Quick. (Tpp. 332, 346) The trial court initially granted defense counsel’s motion

to dismiss on the first-degree burglary charge but the next day, denied the motion.

6

(Tpp. 345, 366) The court denied the motion to dismiss on assault with a deadly

weapon on Officer Quick, and no other motions were made. (Tpp. 346-348)

ARGUMENT

I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, REQUIRING ARREST OF JUDGMENT, WHEN IT ENTERED JUDGMENT AGAINST MR. MULDER FOR SPEEDING AND RECKLESS DRIVING BECAUSE THOSE CRIMES WERE LESSER INCLUDED CRIMES OF THE CHARGED OFFENSE OF FELONY FLEEING TO ELUDE ARREST

Standard of Review

Whether the trial court erred in failing to arrest judgment on speeding and

reckless driving is a question of law, which is reviewed de novo. See generally

State v. Wilson, 340 N.C. 720, 726-27, 459 S.E.2d 192, 196 (1995). “Under the de

novo standard, the reviewing court ‘considers the matter anew and freely

substitutes its own judgment for that of the [lower court].’” N.C. Department of

Environment and Natural Resources v. Carroll, 358 N.C. 649, 660, 559 S.E.2d

888, 895 (2004) (citations omitted).

Issue Preserved

“A motion in arrest of judgment is directed to some fatal defect appearing on

the face of the record.” State v. McGaha, 306 N.C. 699, 702, 295 S.E.2d 449, 451

(1982). Although Mr. Mulder did not make a motion in the trial court for arrest of

judgment, our Supreme Court has held that the issue may be raised for the first

7

time on appeal. See State v. Sellers, 273 N.C. 641, 645, 161 S.E.2d 15, 18 (1968);

see also State v. Wilson, 128 N.C. App. 688, 691, 497 S.E.2d 416, 419 (1998)

(“When such a defect is present, it is well established that a motion in arrest of

judgment may be made at any time in any court having jurisdiction over the matter,

even if raised for the first time on appeal.”)

Argument

The indictment for felony fleeing to elude arrest only alleged two valid

statutory aggravating factors: speeding and reckless driving.2 (Rp. 35) Mr.

Mulder was convicted of felony fleeing to elude arrest and was also convicted of

speeding and reckless driving. Because speeding and reckless driving were lesser

included offenses of felony fleeing to elude arrest in this instance, the trial court

erred when it failed to arrest judgment on those offenses. The case must be

remanded to the trial court with instructions to arrest judgment in 11 CRS 50049

and for re-sentencing.

The Double Jeopardy Clause of the Fifth Amendment protects against: (1) a

second prosecution for the “same offense” after acquittal; (2) a second prosecution

for the “same offense” after conviction; and (3) multiple punishments for the

“same offense.” North Carolina v. Pearce, 395 U.S. 711, 23 L.Ed.2d 656 (1969).

2 The State also alleged as an aggravating factor in the felony fleeing to elude indictment “fail to heed lights and siren.” (Rp. 35) However, this is not one of the listed statutory aggravating factors pursuant to N.C. Gen. Stat. § 20-141.5 and can be disregarded.

8

Double jeopardy, rather than being a single doctrine, is actually comprised of three separate though related rules, prohibiting (1) reprosecution for the same offense following acquittal, (2) reprosecution for the same offense following conviction, and (3) multiple punishments for the same offense.

Patton v. North Carolina, 381 F.2d 636, 643-44 (4th Cir 1967). The Fifth

Amendment forbids successive prosecution and cumulative punishment for a

greater and lesser included offense. Brown v. Ohio, 432 U.S. 161, 53 L.Ed.2d 187

(1977) (prior conviction for the lesser included offense of joyriding prohibited

subsequent prosecution for auto theft). A defendant cannot be sentenced for both

the greater offense and the lesser included offense, punishing twice for the same

conduct. State v. Gardner, 315 N.C. 444, 340 S.E.2d 701 (1986). “Double

jeopardy bars additional punishment where the offenses have the same elements or

when one offense is a lesser included offense of the other.” State v. McAllister,

138 N.C. App. 252, 255, 530 S.E.2d 859, 862, appeal dismissed, 352 N.C. 681,

545 S.E.2d 724 (2000).

North Carolina has a well-established definitional test for determining

whether one offense is a lesser included offense of another crime:

[T]he definitions accorded the crimes determine whether one crime is a lesser included offense of another crime. In other words, all of the essential elements of the lesser crime must also be essential elements included in the greater crime. If the lesser crime has an essential element which is not completely covered by the greater crime, it is not a lesser included offense.

9

State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378-79 (1982) (citation

omitted) (emphasis omitted), overruled in part on other grounds by State v. Collins,

334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993); accord State v. Hedgepeth, 165 N.C.

App. 321, 324, 598 S.E.2d 202, 205, disc. rev. denied, 359 N.C. 193, 607 S.E.2d

656 (2004) (holding that a “lesser” crime cannot be a lesser included offense of a

“greater” crime if the lesser crime contains an essential element not included in the

greater crime). Consequently, when a jury returns verdicts finding a defendant

guilty of both an offense and its lesser included offense arising out of the same

conduct, the court must arrest judgment on the verdict finding the defendant guilty

of the lesser offense. State v. Richardson, 279 N.C. 621, 628, 185 S.E.2d 102,

107-08 (1971).

Felonious operation of a motor vehicle to elude arrest is defined under N.C.

Gen. Stat. § 20-141.5, which provides in pertinent part:

(a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.

(b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.

(1) Speeding in excess of 15 miles per hour over the legal speed limit.--------

10

(3) Reckless driving as proscribed by G.S. 20-140.

The offense of speeding is defined by N.C. Gen. Stat. § 20-141(j1) (2013) as

follows: “A person who drives a vehicle on a highway at a speed that is . . . more

than 15 miles per hour more than the speed limit established by law for the

highway where the offense occurred . . . is guilty of a Class 2 misdemeanor.”

Finally, N.C. Gen. Stat. § 20-140 defines the offense of reckless driving as follows:

(a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.(b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.

Here, in order to enhance fleeing to elude arrest from a misdemeanor to a

felony, the State had to prove as an additional element the two aggravating factors

of speeding in excess of 15 miles per hours and reckless driving under G.S. § 20-

140, which were the only two valid aggravating factors listed in the felony fleeing

to elude arrest indictment. (Rp. 35) Those are the same elements as the charged

crimes of speeding (driving 100 miles per hours in a 55 mile per hour zone) and

reckless driving. (Rp. 29) Neither the charged crime of speeding nor the charged

crime of reckless driving in 11 CRS 50049 contained an essential element not

included in the felony fleeing to elude arrest offense as charged by the State in 11

11

CRS 50055. Therefore, the trial court erred when it failed to arrest judgment on

the speeding and reckless driving convictions in 11 CRS 50049. Accordingly, the

case must be remanded with instructions to arrest judgment and for re-sentencing.

See generally State v. Dickens, 162 N.C. App. 632, 639, 592 S.E.2d 567, 573

(2004) (trial court committed plain error when it failed to arrest judgment on

assault with a deadly weapon, a lesser included offense of assault with a firearm on

a law enforcement officer).

II. IN THE ALTERNATIVE, MR. MULDER’S CONVICTIONS FOR SPEEDING AND RECKLESS DRIVING MUST BE VACATED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE DISTINGUISHING THOSE CRIMES FROM THE TWO AGGRAVATING FACTORS USED TO CONVICT MR. MULDER OF FELONY FLEEING TO ELUDE ARREST.

Standard of Review

Whether the State presented substantial evidence of every essential element

of the charged offense presents a question of law, State v. Vause, 328 N.C. 231,

236, 400 S.E.2d 57, 61 (1991), subject to de novo review by this Court. State v.

Bagley, 183 N.C. App. 514, 523, 644 S.E.2d 615, 621 (2007). “Under the de novo

standard, the reviewing court ‘considers the matter anew and freely substitutes its

own judgment for that of the [lower court].’” N.C. Department of Environment &

Natural Resources v. Carroll, 358 N.C. 649, 660, 599 S.E.2d 888, 895 (2004)

(citations omitted).

12

Argument

Mr. Mulder was charged and convicted for speeding, reckless driving, and

felony fleeing to elude arrest. However, because the State also alleged both

speeding and reckless driving as the only two valid statutory aggravating factors

used to enhance the offense from misdemeanor to felony fleeing to elude arrest, the

two convictions for those crimes must be vacated. The evidence necessary to

prove both speeding and reckless driving was the same evidence necessary to

prove the aggravating factors element of felony fleeing to elude arrest, which is

prohibited by N.C. Gen. Stat. § 15A-1340.16(d) (2013). The speeding and reckless

driving charges should have been dismissed at the close of all the evidence.

Therefore, the convictions for speeding and reckless driving must be vacated and

the case remanded for re-sentencing.

Mr. Mulder’s counsel failed to move to dismiss the charges of speeding and

reckless driving at the close of the State’s case and at the close of all the evidence,

(Tpp. 332-348) thereby waiving appellate review of this sufficiency issue. See

N.C. R. App. P. 10(a)(3). To prevent a “manifest injustice” in this case, Mr.

Mulder respectfully prays that this Court invoke Rule 2 of the North Carolina

Rules of Appellate Procedure to review this issue and vacate his speeding and

reckless driving convictions. See In re A.W., 209 N.C. App. 596, 599, 706 S.E.2d

305, 307 (2011) (invoking Rule 2 and reviewing sufficiency of the evidence

13

despite juvenile’s failure to make a motion to dismiss because “[a]s is the case in

adult criminal prosecutions,” under Rule 10(a)(3), “a juvenile charged in a petition

with being delinquent is precluded from challenging the sufficiency of the

evidence on appeal unless he has moved to dismiss the petition at the close of all

evidence”). See also State v. Stocks, 319 N.C. 437, 439, 355 S.E.2d 492, 493

(1987) (invoking Appellate Rule 2 and reviewing sufficiency of the evidence

despite defendant’s failure to make a motion to dismiss at trial). While the

“residual power to vary the default provisions of the appellate procedure rules

should only be invoked rarely and in ‘exceptional circumstances,’” In re A.W., 209

N.C. App. at 599, 706 S.E.2d at 307 (quoting State v. Gayton-Barbosa, 197 N.C.

App. 129, 134, 676 S.E.2d 586, 589 (2009)), “our Courts ‘have regularly invoked

N.C. R. App. P. 2 in order to address challenges to the sufficiency of the evidence

to support a conviction.’” Id. (quoting Gayton-Barbosa, 197 N.C. App. at 134,

676 S.E.2d at 590).

Felonious operation of a motor vehicle to elude arrest is defined under N.C.

Gen. Stat. § 20-141.5, which provides in pertinent part:

(a) It shall be unlawful for any person to operate a motor vehicle on a street, highway, or public vehicular area while fleeing or attempting to elude a law enforcement officer who is in the lawful performance of his duties. Except as provided in subsection (b) of this section, violation of this section shall be a Class 1 misdemeanor.

14

(b) If two or more of the following aggravating factors are present at the time the violation occurs, violation of this section shall be a Class H felony.

(1) Speeding in excess of 15 miles per hour over the legal speed limit.--------

(3) Reckless driving as proscribed by G.S. 20-140.

The offense of speeding is defined by N.C. Gen. Stat. § 20-141(j1) (2013) as

follows: “A person who drives a vehicle on a highway at a speed that is . . . more

than 15 miles per hour more than the speed limit established by law for the

highway where the offense occurred . . . is guilty of a Class 2 misdemeanor.”

Finally, N.C. Gen. Stat. § 20-140 defines the offense of reckless driving as follows:

(a) Any person who drives any vehicle upon a highway or any public vehicular area carelessly and heedlessly in willful or wanton disregard of the rights or safety of others shall be guilty of reckless driving.(b) Any person who drives any vehicle upon a highway or any public vehicular area without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.

“Evidence necessary to prove an element of the offense shall not be used to prove

any factor in aggravation . . . .” N.C. Gen. Stat. § 15A-1340.16(d) (2013).

The State only alleged two of the possible eight aggravating factors to

enhance the fleeing to elude arrest charge from a misdemeanor to a felony. The

State also alleged that Mr. Mulder failed to heed light or siren as an aggravating

15

factor; however, this is not a permissible statutory aggravating factor of the offense

and can be disregarded. Therefore, evidence that Mr. Mulder was speeding and

driving recklessly was necessay to prove the aggravating factor element of felony

fleeing to elude arrest, and this evidence could not also be used for the offenses of

speeding and reckless driving.

Here, the State presented the same evidence for all three offenses and made

no attempt to distinguish the evidence to fit certain offenses. Sgt. Norton testified

that Mr. Mulder never slowed in his pursuit and that Norton had his lights and

sirens on the entire time. Furthemore, Sgt. Norton testified that at one point, Mr.

Mulder was speeding at least 100 mph in a 60 or 65 mph zone. Near the end of the

direct examination, after describing the pursuit, the prosecutor asked Sgt. Norton

the following questions related to the offenses of felony fleeing to elude arrest,

speeding and reckless driving:

Q: And from the time when you first turned on your blue lights and siren back on McGill Street up until you finally were able to take the defendant into custody, was is – what was your purpose in turning on your blue lights and siren and trying to stop him?

A: To further investigate the complaint from 704 Villa Circle, the domestic dispute.

Q: And during this sequence that you just told us about, officer, do you have an opinion as to whether the defendant’s vehicle, as you observed it being operated, was being done in such a manner as to endanger persons and/or property?

A: Yes, sir.

16

Q: And were there times during this sequence in which he was operating the vehicle in excess of fifteen miles an hour over the speed limit?

A: Yes, sir. (Tpp. 164-165)

----------------------

Q: And initially when you put on your lights and siren, you indicated that you were tyring to stop the vehicle to further investigate the call that you have been trying to respond to?

A: Yes, sir.

Q: At the end of the chase, if you will, at Kelly Drive, at that time, did you have reason to charge the defendant at that time with speeding to elude a motor vehicle?

A: Yes, sir.

Q: And was it your intent to take the defendant into custody for that offense at that time?

A: Yes, sir.

Q: Is that what you were attempting to do?

A: Yes, sir. (Tp. 167)

At no point during the preceding testimony or his other testimony regarding

the pursuit did Sgt. Norton or the prosecutor attempt to differentiate the evidence

supporting the speeding and reckless driving offense from the same evidence of

speeding and reckless driving used to aggravate fleeing to elude arrest from a

misdemeanor to a felony. This exchange shows that the pursuit occurred in one

17

long sequence, and the evidence presented for the aggravating factors of speeding

and reckless driving to enhance fleeing to elude arrest was the same evidence

presented for the offenses of speeding and reckless driving.

Because the State did not distinguish the evidence from the offenses and the

aggravating factors, the trial court erred when if failed to dismiss the charges of

speeding and reckless driving at the close of all the evidence. Therefore, Mr.

Mulder’s convictions for speeding and reckless driving must be vacated and the

case remanded for re-sentencing.

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CONCLUSION

For all the foregoing reasons and authorities, Mr. Mulder respectfully

requests that this Court remand the case with instruction that the trial court arrest

judgment for speeding and reckless driving in 11 CRS 50049 and for re-

sentencing. In the alternative, Mr. Mulder respectfully requests that this Court

vacate his convictions for speeding and reckless driving in 11 CRS 50049 and

remand the case for re-sentencing.

Respectfully submitted, this the 10th day of July, 2013.

Electronic submissionMary CookAssistant Appellate DefenderNorth Carolina State Bar No. 41175

Staples HughesAppellate DefenderOffice of the Appellate Defender123 West Main Street, Suite 500Durham, North Carolina 27701(919) 354-7210

Mary.J.Cook@nccourts.org

ATTORNEYS FOR DEFENDANT-APPELLANT

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CERTIFICATE OF COMPLIANCE WITH N.C. R. APP. P. 28(j)(2)

Undersigned counsel hereby certifies that this brief is in compliance with N.C. R. App. P. 28(j)(2) in that it is printed in 14-point Times New Roman font and contains no more than 8,750 words in the body of the brief, footnotes and citations included, as indicated by the word-processing program used to prepare this brief.

This the 10th day of July, 2013.

Electronic submissionMary CookAssistant Appellate Defender

CERTIFICATE OF FILING AND SERVICE

I hereby certify that the original Defendant-Appellant’s Brief has been filed electronically to John H. Connell, the Clerk of the North Carolina Court of Appeals.

I further certify that a copy of the above and foregoing Defendant-Appellant’s Brief has been duly served upon the following party, by first-class mail, postage prepaid:

Ms. Karen BlumAssistant Attorney GeneralNorth Carolina Department of JusticePost Office Box 629Raleigh, North Carolina 27602

This the 10th day of July, 2013.

Electronic submissionMary CookAssistant Appellate Defender

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