NO. COA13-672

NORTH CAROLINA COURT OF APPEALS

Filed: 18 March 2014

STATE OF NORTH CAROLINA

v. Lee County

Nos. 11 CRS 78

11 CRS 277

11 CRS 50049–58

EDWARD EARL1 MULDER

Appeal by Defendant from judgments entered 15 October 2012

by Judge Carl R. Fox in Lee County Superior Court. Heard in the 

Court of Appeals 7 November 2013.

Attorney General Roy Cooper, by Special Deputy Attorney 

General Karen A. Blum, for the State. 

Appellate Defender Staples Hughes, by Assistant Appellate 

Defender Mary Cook, for Defendant.

STEPHENS, Judge.

Procedural History and Evidence

Defendant began a dating relationship with Brenda Swann

approximately seven years before the trial of this case. When 

the relationship ended, Swann obtained a Domestic Violence 

 

1 The transcript lists Defendant’s middle name as “Everett.” 

Relying on the judgments entered in the trial court, however, we 

use the middle name “Earl.”
-2-

Protective Order (“DVPO”) against Defendant. This appeal arises 

from the domestic disturbance and car chase that followed.

On 6 January 2011, around 7:00 p.m., Swann heard a loud 

noise outside her home. Swann’s son went to the front door to 

investigate. From that vantage point, the son observed Defendant

striking Swann’s car with a hammer. Defendant was wearing a 

black ski mask, which was “kind of rolled up [and] pulled . . .

over his head.” The son confronted Defendant and asked him what 

he was doing. Without responding or releasing the hammer, 

Defendant began approaching the son. Concerned for his mother’s 

safety, the son returned to the house and attempted to close the

door. Defendant pushed back on the door, and the two began 

struggling. During the struggle, the son told Swann to call the 

police. The son eventually succeeded in closing the door, and 

Defendant left the premises. The police arrived two to three 

minutes later.

While police officers were speaking with Swann and her son, 

Sergeant Scott Norton was on nearby patrol. After learning about 

the disturbance, he observed Defendant’s vehicle driving down 

the road. Norton activated his lights and began following the 

car. Defendant then turned his vehicle around, swerved into a

yard, jumped over a curb, and accelerated away. According to 
-3-

Norton, “[i]t was obvious that [Defendant] was running [and]

wasn’t going to surrender.” Norton requested backup and 

continued pursuit. Defendant eventually stopped at the top of a 

bridge, leading Norton to believe that he was finished fleeing. 

When Norton opened his door, however, Defendant “accelerated, 

squealing tires,” and left. Norton commented at trial that

Defendant appeared to be “swerve[ing] . . . as if he was trying 

to hit [civilian cars]. . . . Just innocent people on the 

highway.”

Other police cars joined in the chase and tried to “box in” 

Defendant. During the attempt, Defendant swerved toward Norton, 

missing him, and escaped. As the pursuit wore on, the vehicles 

reached speeds in excess of 100 miles per hour, and officers 

observed Defendant toss papers and other objects out the car

window.2 After a time, another officer drove down the road in the 

opposite direction of Defendant. Defendant then exited the road, 

veered off the right-hand shoulder, and overcorrected. Next, he

went over to the left-hand side of the road, “slammed on the 

brakes,” and came back across the road, heading toward Norton’s 

vehicle. 

 

2 A black ski mask was later recovered from the area.
-4-

Instead of hitting Norton, Defendant’s car “went into a 

ditch.” Officers then tried to “box [Defendant] in” a second 

time. They were unsuccessful, and Defendant drove out of the 

ditch, “ramm[ing]” another officer’s vehicle in the process. 

Worried that Defendant would cause injury or further damage to 

the other officer’s car, Norton then used his own vehicle to 

“ram[ D]efendant’s car in the driver’s side door.” 

After striking Defendant’s car, Norton exited his vehicle 

and approached Defendant. Norton had his gun out and told

Defendant to raise his hands and turn off the car. In response, 

Defendant reached out the window, slapped Norton’s pistol, and 

said “shoot me, mother[]fucker.” Norton then reached into

Defendant’s car and attempted to pull him out. At the same time, 

Defendant “[shifted his car into] reverse and accelerate[d] 

while [Norton was] hanging in the driver’s side window . . . .”

The other officer was hanging in the passenger side window, and 

more officers began to approach from behind. Before Defendant 

was able to make contact with the approaching officers, the 

passenger-side officer reached inside Defendant’s car, put it 

into park, and shut off the engine. Defendant remained 

“[u]ncooperative, belligerent, cussing at us, [and] trying to 

fight” as he was pulled from the vehicle and arrested.
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Defendant was later indicted for (1) one count of failure 

to heed light or siren, (2) one count of first-degree burglary, 

(3) two counts of violating a DVPO, (4) one count of speeding, 

(5) one count of reckless driving to endanger, (6) one count of 

littering, (7) one count of failure to maintain lane control, 

(8) five counts of assault with a deadly weapon on a government 

officer (“AWDWOGO”), (9) one count of speeding to elude arrest 

with a motor vehicle,3 (10) one count of injury to personal 

property, and (11) one count of breaking or entering. The case 

came on for trial beginning 8 October 2012. 

On 15 October 2012, the jury found Defendant guilty on all 

counts except first-degree burglary. Instead of burglary, 

Defendant was found guilty of the lesser-included offense of 

misdemeanor breaking and entering. Afterward, the trial court 

imposed consecutive sentences of 15–18 months in prison for the 

first two counts of AWDWOGO; 19–23 months in prison for the next 

three counts of AWDWOGO; 6–8 months in prison for the 

consolidated offenses of speeding, reckless driving, speeding to 

 

3 The indictment refers to this charge as “FLEE/ELUDE ARREST WITH 

A MOTOR VEHICLE.” The cited statute, however, describes the 

crime as “Speeding to elude arrest[.]” N.C. Gen. Stat. § 20-

141.5 (2013). Thus, for purposes of consistency with the 

legislature, we refer to this charge as “speeding to elude 

arrest.” 
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elude arrest, failure to heed light or siren, failure to 

maintain lane control, and littering; and 75 days in prison for 

the DVPO violations, the injury to personal property offense, 

and the breaking or entering offense. Defendant gave notice of 

appeal in open court.

Discussion

On appeal, Defendant argues that the trial court erred in 

failing to arrest judgment on the speeding and reckless driving

convictions because each of those offenses is a lesser-included 

offense of felony speeding to elude arrest and, therefore, 

subjects Defendant to double jeopardy. Alternatively, Defendant 

argues that the speeding and reckless driving convictions must 

be vacated because the State failed to present sufficient 

evidence distinguishing them from the aggravating factors 

applied to enhance Defendant’s speeding to elude arrest 

conviction from a misdemeanor to a felony. We arrest judgment on 

the speeding and reckless driving convictions and remand for resentencing. 

I. Appellate Review

As a preliminary matter, we address the State’s argument 

that Defendant is barred from seeking to arrest judgment on 

double jeopardy grounds because he admittedly failed to raise
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the double jeopardy issue at trial. In response, Defendant 

contends (1) that a motion to arrest judgment based on a fatal 

error or defect in the record may be raised for the first time 

on appeal or, in the alternative, (2) that this Court should 

invoke Rule 2 of the North Carolina Rules of Appellate Procedure 

and review this issue in order to prevent manifest injustice. We 

hold that Defendant waived his right to appellate review by 

failing to raise the double jeopardy issue at trial, but elect 

to review the issue nonetheless under Rule 2 of the North 

Carolina Rules of Appellate Procedure. 

A. Arrest of Judgment

As a general rule, “constitutional questions not raised and 

passed on by the trial court will not ordinarily be considered 

on appeal.” State v. Davis, 364 N.C. 297, 301, 698 S.E.2d 65, 67 

(2010) (citations, internal quotation marks, and brackets 

omitted) (declining to review the defendant’s double jeopardy 

argument because he failed to raise it at trial). Furthermore, 

our appellate rules require a party to make “a timely request, 

objection, or motion [at trial], stating the specific grounds 

for the [desired] ruling” in order to preserve an issue for 

appellate review. N.C.R. App. P. 10(a)(1). 
-8-

Despite this general rule, Defendant contends that we 

should review his argument seeking arrest of judgment on double 

jeopardy grounds pursuant to our Supreme Court’s opinion in 

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

and our opinion in State v. Wilson, 128 N.C. App. 688, 691, 497 

S.E.2d 416, 419 (1998) (citing Sellers). We disagree. 

In Sellers, our Supreme Court stated that

[a] motion in arrest of judgment predicated 

upon some fatal error or defect appearing on 

the face of the record proper may be made at 

any time in any court having jurisdiction of 

the matter. This is true even though the 

motion is made for the first time . . . at 

the hearing of the appeal from the judgment 

of the Superior Court. 

Sellers, 273 N.C. at 645, 161 S.E.2d at 18. Applying Sellers, 

Defendant contends that the alleged double jeopardy problem in 

this case constitutes a fatal defect on the face of the record 

and, therefore, may be raised for the first time on appeal. This 

is incorrect. 

A double jeopardy problem is distinct from a “fatal flaw 

which appears on the face of the record.” See State v. Pakulski, 

326 N.C. 434, 439, 390 S.E.2d 129, 132 (1990). In Pakulski, our 

Supreme Court confirmed that a fatal flaw on the face of the 

record is akin to a “substantive error on the indictment,” which 

is separate and apart from a double jeopardy issue. See id.
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(“When judgment is arrested because of a fatal flaw which 

appears on the face of the record, such as a substantive error 

on the indictment, the verdict itself is vacated . . . . [W]hen 

judgment is arrested on predicate felonies in a felony murder 

case to avoid a double jeopardy problem, [however,] the guilty 

verdicts on the underlying felonies remain on the docket 

. . . .”). Therefore, Defendant’s double jeopardy argument 

cannot be raised for the first time on appeal on a motion for

arrest of judgment because a double jeopardy problem does not 

constitute a fatal defect on the face of the record. See id. 

Accordingly, Defendant’s double jeopardy argument is waived

pursuant to the general rule described above. 

B. Rule 2

Despite the rule disallowing appellate review of issues not 

raised at trial, our Supreme Court has stated that the appellate 

courts may elect to review an unpreserved double jeopardy issue 

on appeal pursuant to our “supervisory power over the trial 

divisions [and] Rule 2 of the North Carolina Rules of Appellate 

Procedure . . . .” State v. Dudley, 319 N.C. 656, 659, 356 

S.E.2d 361, 364 (1987); N.C.R. App. P. 2 (“To prevent manifest 

injustice to a party . . . either court of the appellate 

division may . . . suspend or vary the requirements or 
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provisions of any of these rules in a case pending before it 

upon application of a party or upon its own initiative, and may 

order proceedings in accordance with its directions.”). The 

decision to review an unpreserved argument relating to double 

jeopardy is entirely discretionary. See, e.g., State v. 

McLaughlin, 321 N.C. 267, 272, 362 S.E.2d 280, 283 (1987) 

(declining to review the defendant’s double jeopardy argument 

because the defendant failed to raise that issue at trial and 

thus waived appellate review); Dudley, 319 N.C. at 659, 356 

S.E.2d at 364 (reviewing the defendant’s double jeopardy 

argument even though it was waived); State v. Mebane, 106 N.C. 

App. 516, 532–33, 418 S.E.2d 245, 255–56 (declining to review 

the defendant’s double jeopardy argument because it was not 

raised at trial and noting that “[e]ven if we opted to review 

the double jeopardy issue . . . , we [would conclude that 

Defendants failed to establish] . . . . error on appeal”), disc. 

review denied, 332 N.C. 670, 424 S.E.2d 414 (1992). After a 

careful review of Defendant’s double jeopardy argument in this 

case, we elect to suspend the rules and review the issue under 

Rule 2. 

II. Double Jeopardy
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“Both the fifth amendment to the United States Constitution 

and article I, section 19 of the North Carolina Constitution 

prohibit multiple punishments for the same offense absent clear 

legislative intent to the contrary.” State v. Etheridge, 319 

N.C. 34, 50, 352 S.E.2d 673, 683 (1987) (citation omitted; 

certain emphasis added). In State v. Ezell, we described the 

double jeopardy doctrine as follows:

For decades, the Supreme Court of the United 

States has applied . . . the Blockburger

test in analyzing multiple offenses for 

double jeopardy purposes. The Court in 

Blockburger v. United States, 284 U.S. 299,

76 L. Ed. 306 (1932), held as follows:

The applicable rule is that, where 

the same act or transaction 

constitutes a violation of two 

distinct statutory provisions, the 

test to be applied to determine 

whether there are two offenses or 

only one is whether each provision 

requires proof of a fact which the 

other does not.

If what purports to be two offenses is 

actually one under the Blockburger test, 

double jeopardy prohibits prosecution for 

both. 

159 N.C. App. 103, 106–07, 582 S.E.2d 679, 682 (2003) (certain 

citations omitted). The United States Supreme Court has 

clarified, however, that

double jeopardy does not prohibit multiple 

punishment for two offenses — even if one is 
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included within the other under the 

Blockburger test — if both are tried at the 

same time and the legislature intended for 

both offenses to be separately 

punished . . . . 

Id. at 107, 582 S.E.2d at 682 (citing, inter alia, Missouri v. 

Hunter, 459 U.S. 359, 74 L. Ed. 2d 535 (1983)). The North 

Carolina Supreme Court has relied on both Blockburger and Hunter

when determining whether double jeopardy applies under article 

I, section 19 of the North Carolina Constitution. See, e.g., 

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

defendant convicted of multiple criminal offenses in the same 

trial is only protected by double jeopardy principles if (1) 

those criminal offenses constitute the “same offense” under 

Blockburger and (2) the legislature did not intend for the 

offenses to be punished separately. See id. at 454–55, 340 

S.E.2d at 709. 

Here, Defendant argues that the judgments against him 

violate principles of double jeopardy because he was separately 

convicted of speeding and reckless driving and also convicted of 

felony speeding to elude arrest, which was raised from a 

misdemeanor to a felony because Defendant was speeding and 

driving recklessly. Therefore, pursuant to the test articulated 

above, we must first determine whether Defendant’s convictions 
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for speeding and reckless driving in addition to felony speeding

to elude arrest constitute punishments for the same offense. If 

so, we must then determine whether the legislature intended for 

those offenses to be punished alternatively or separately. After 

a thorough review, we conclude that Defendant’s convictions 

constitute the same offense for purposes of double jeopardy and, 

further, that the legislature intended for them to be punished 

alternatively, not separately.

A. The Same Offense

As discussed above, the applicable test to determine 

whether double jeopardy attaches in a single prosecution is 

“whether each statute requires proof of a fact which the others 

do not.” Etheridge, 319 N.C. at 50, 352 S.E.2d at 683 (citing 

Blockburger). 

By definition, all essential elements of a 

lesser[-]included offense are also elements 

of the greater offense. Invariably then, a 

lesser[-]included offense requires no proof 

beyond that required for the greater 

offense, and the two crimes are considered 

identical for double jeopardy purposes. If 

neither crime constitutes a 

lesser[-]included offense of the other, the 

convictions will fail to support a plea of 

double jeopardy. 

Id. (citations omitted). 
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In this case, as discussed above, Defendant was convicted 

of speeding, reckless driving, and felony speeding to elude 

arrest based on the aggravating factors of speeding and reckless 

driving. The essential elements of speeding under section 20-

141(j1) are: (1) driving (2) a vehicle (3) on a highway (4) more 

than 15 miles per hour over the speed limit or over 80 miles per 

hour. N.C. Gen. Stat. § 20-141(j1) (2013). The essential 

elements of reckless driving under section 20-140(b) are: (1) 

driving (2) any vehicle (3) on a highway or any public vehicular 

area (4) without due caution and circumspection and (5) at a 

speed or in a manner so as to endanger or be likely to endanger 

any person or property. N.C. Gen. Stat. § 20-140(b) (2013). The 

essential elements of misdemeanor speeding to elude arrest under 

section 20-141.5(a) are: (1) operating a motor vehicle (2) on a 

street, highway, or public vehicular area (3) while fleeing or 

attempting to elude a law enforcement officer (4) who is in the 

lawful performance of his duties. N.C. Gen. Stat. § 20-141.5(a). 

The elements of the two aggravating factors used to raise the 

crime to a felony in this case are (i)(1) speeding (2) in excess 

of 15 miles per hour over the legal speed limit and (ii) 

“reckless driving as proscribed in G.S. 20-140.” Both of these 

factors contain the same essential elements as the separate 
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crimes listed above. Therefore, whether Defendant was subjected 

to multiple punishments for the “same offense” turns on whether 

these aggravating factors are considered “essential elements” of 

the felony speeding to elude arrest conviction in this case. We 

hold that they are. 

In its brief, the State argues that Defendant has not been 

punished for the same offense because the aggravating factors 

used to raise speeding to elude arrest from a misdemeanor to a 

felony are not essential elements of that offense. In so 

arguing, the State relies on the following language from this 

Court’s opinion in State v. Funchess:

Although many of the enumerated aggravating 

factors [for speeding to elude arrest] are 

in fact separate crimes under various 

provisions of our General Statutes, they are 

not separate offenses . . . , but are merely 

alternate ways of enhancing the punishment 

for speeding to elude arrest from a 

misdemeanor to a Class H felony.

141 N.C. App. 302, 309, 540 S.E.2d 435, 439 (2000). The State 

misapplies this language to the circumstances presented by this 

case. 

In Funchess, the defendant was indicted for felonious 

speeding to elude arrest based on three of the eight listed 

aggravating factors. Id. at 306, 540 S.E.2d at 438. At trial, 

the court instructed the jury that the State was required to 
-16-

prove “two or more” of those three factors in order to convict 

the defendant of felony speeding to elude arrest. Id. On appeal, 

the defendant argued that the trial court’s instruction violated 

the constitutional provision requiring a unanimous jury verdict 

because it did not tell the jury to “unanimously agree on the 

same two factors[.]” Id. at 307, 540 S.E.2d at 438. In finding 

that the trial court did not violate the unanimity requirement, 

we held that the aggravating factors enumerated in section 20-

141.5 did not constitute separate criminal offenses when used to 

elevate the misdemeanor offense of speeding to elude arrest to a 

felony and, therefore, did not allow the jury to separately 

convict the defendant of more than one possible crime. Id. Thus,

we determined that the aggravating factors — while they might 

constitute criminal offenses in other sections of the code —

could not be separately punished in the context of section 20-

141.5. This holding has no direct bearing on whether the listed 

aggravating factors may be considered “essential elements” of 

felony speeding to elude arrest for purposes of double jeopardy.

In addition, the United States Supreme Court has clarified

that “the existence of any fact (other than a prior conviction) 

[which] increases the maximum punishment that may be imposed on 

a defendant . . . — no matter how the State labels it —
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constitutes an element [of the offense]” for purposes of the 

Sixth Amendment right to a jury trial. Sattazahn v. 

Pennsylvania, 537 U.S. 101, 111, 154 L. Ed. 2d 588, 598 (2003) 

(citing Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435 

(2000)); see also Ring v. Arizona, 536 U.S. 584, 609, 153 L. Ed. 

2d 556, 577 (2002) (holding that aggravating circumstances that 

make a defendant eligible for the death penalty “operate as the 

functional equivalent of an element of a greater offense” for 

purposes of the Sixth Amendment’s jury trial guarantee) 

(citation and internal quotation marks omitted). The Court also 

commented that there is “no principled reason to distinguish, 

[in the context of a capital case], between what constitutes an 

offense for purposes of the Sixth Amendment’s jury-trial 

guarantee and what constitutes an ‘offence’

4 for purposes of the 

Fifth Amendment’s Double Jeopardy Clause.” Sattazahn, 537 U.S. 

at 111–12, 154 L. Ed. 2d at 599 (citation omitted).

Pursuant to the Supreme Court opinions discussed above and 

because the speeding and reckless driving factors increased the 

maximum penalty for speeding to elude arrest from 45 days to 10 

 

4 The Fifth Amendment uses the archaic spelling of the word 

offense, writing it with a “c.” See U.S. Const. amend. V; see 

generally Webster’s Third New International Dictionary of the 

English Language Unabridged 1566 (3d ed. 2002).
-18-

months, see N.C. Gen. Stat. §§ 15A-1340.17, 1340.23 (2013), we 

conclude that those factors constituted elements of speeding to 

elude arrest in this case for double jeopardy purposes. 

Therefore, we hold that Defendant was twice subjected to 

punishment for the “same offense” under Blockburger when he was 

convicted of speeding, reckless driving, and felony speeding to 

elude arrest.

B. The Intent of the Legislature

Even when a defendant is punished twice in the same trial

for the “same offense,” however, our Supreme Court has stated

that relief under double jeopardy principles is only available

if the legislature did not intend for multiple punishments to be 

imposed. Citing the United States Supreme Court’s opinion in 

Hunter, 459 U.S. at 368–69, 74 L. Ed. 2d at 544, our Supreme 

Court has described the intention doctrine as follows:

The Double Jeopardy Clause plays only a 

limited role in deciding whether cumulative 

punishments may be imposed under different 

statutes at a single criminal proceeding —

that role being only to prevent the 

sentencing court from prescribing greater 

punishments than the legislature 

intended. . . . [W]here our legislature 

specifically authorizes cumulative 

punishment under two statutes, regardless of 

whether those two statutes proscribe the 

“same” conduct under Blockburger, a court’s 

task of statutory construction is at an end 

and the prosecutor may seek and the trial 
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court or jury may impose cumulative 

punishment under such statutes in a single 

trial.

Gardner, 315 N.C. at 460–62, 340 S.E.2d at 712–13 (citations and 

certain quotation marks omitted; emphasis added) (determining 

that the defendant could be punished for the crimes of felony 

larceny and breaking or entering because those crimes deal with 

“separate and distinct social norms” and were placed in 

different articles and subchapters of the criminal code, which 

were entitled “Offenses Against the Habitation and Other 

Buildings” and “Offenses Against Property,” respectively); see 

also State v. Pipkins, 337 N.C. 431, 434–35, 446 S.E.2d 360, 

362–63 (1994) (holding that the defendant’s convictions and 

punishments for trafficking in cocaine by possession and 

felonious possession of cocaine did not violate the principles

of double jeopardy because the legislature intended the 

punishments to protect against two distinct “perceived evils” —

the use of cocaine in the possession offense and the “growing 

concern regarding the gravity of illegal drug activity in North 

Carolina” in the trafficking offense). But see Ezell, 159 N.C. 

App. at 110–11, 582 S.E.2d at 684–85 (holding that the defendant 

was impermissibly subjected to double jeopardy when — in the 

same case — he was convicted of assault with a deadly weapon 
-20-

with intent to kill inflicting serious injury and assault 

inflicting serious bodily injury because the legislature 

intended the offenses to allow alternative punishments, not 

separate ones). In addition, our Supreme Court has noted that 

the presumption raised by the Blockburger

test . . . may be rebutted by a clear 

indication of legislative intent; and, when 

such intent is found, it must be respected, 

regardless of the outcome of the application 

of the Blockburger test. That is, even if 

the elements of the two statutory crimes are 

identical and neither requires proof of a 

fact that the other does not, the defendant 

may, in a single trial, be convicted of and 

punished for both crimes if it is found that 

the legislature so intended. 

Gardner, 315 N.C. at 455, 340 S.E.2d at 709 (citations omitted). 

Given our jurisprudence on this doctrine, we must determine 

whether the legislature intended for the crimes of speeding and 

reckless driving to be punished separately, or alternatively,

from felony speeding to elude arrest when the latter is based on 

the aggravating factors of speeding and reckless driving. After 

careful review, we conclude that the legislature intended the 

latter. 

The speeding charge in this case is prohibited under

section 20-141(j1) of the North Carolina General Statutes. In 

determining the legislature’s purpose for enacting section 20-

141, we have commented that the section was created “for the 
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protection of persons and property and in the interest of public 

safety[] and the preservation of human life.” State v. Bennor, 6 

N.C. App. 188, 190, 169 S.E.2d 393, 394 (1969) (citation and 

internal quotation marks omitted). In addition, our Supreme 

Court has stated more generally that speeding laws are intended 

to protect both “those traveling on arterial highways and those 

entering them from intersecting roads[] from the dangers arising 

because of the frequency of travel along the through highway.” 

Groome v. Davis, 215 N.C. 510, 515, 2 S.E.2d 771, 774 (1939).

Therefore, the speeding statute was enacted to protect against 

harm to persons and property. 

Reckless driving is prohibited under section 20-140(b) of 

the North Carolina General Statutes. Subsection (b) provides 

that “[a]ny 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.” N.C. Gen. Stat. § 20-140(b). As with speeding, our 

Supreme Court has stated that this conduct was prohibited by the 

legislature “for the protection of persons and property and in 

the interest of public safety[] and the preservation of human 
-22-

life.” State v. Norris, 242 N.C. 47, 53, 86 S.E.2d 916, 920 

(1955). 

Speeding to elude arrest is prohibited under section 20-

141.5 of the North Carolina General Statutes. Subsection (a) 

provides that “[i]t 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.” Subsection (b) 

raises that offense from a misdemeanor to a felony in the 

presence of two or more of the following factors: (1) speeding, 

(2) gross impairment while driving, (3) reckless driving, (4) 

negligent driving leading to an accident causing property damage 

or personal injury, (5) driving while license revoked, (6) 

speeding on school property or in an area designated as a school 

zone or a highway work zone, (7) passing a stopped school bus, 

or (8) driving with a child under 12 years old. N.C. Gen. Stat. 

§ 20-141.5(a)–(b). Our appellate courts have not offered a 

distinct legislative rationale for this statute. Nonetheless,

the statute’s own terms state that an individual in violation of 

subsection (a) whose act results in “the death of any person” 

shall be subject to a higher penalty. N.C. Gen. Stat. § 20-

141.5(b1) (emphasis added). In addition, by transforming the 
-23-

crime from a misdemeanor into a felony for actions like 

speeding, reckless driving, causing property damage or personal 

injury, and endangering the lives of children, the plain 

language of the statute suggests that the legislature intended 

to deter actions subjecting persons, property, and public safety 

to greater risk. Thus, at least to the extent that speeding to 

elude arrest is raised from a misdemeanor to a felony pursuant 

to the aggravating factors of speeding and reckless driving, we 

see no reason to conclude that the legislature intended this 

crime to permit a separate punishment from speeding and reckless 

driving. 

In Gardner, as noted above, our Supreme Court determined 

that the defendant’s convictions for larceny and breaking or 

entering did not invoke principles of double jeopardy because 

the legislature intended for those offenses to prohibit “two 

separate and distinct social norms, the breaking into or 

entering the property of another and the stealing and carrying 

away of another’s property.” Gardner, 315 N.C. at 461, 340 

S.E.2d at 712. In so holding, the Court pointed out that this 

was evidenced by the fact that the two offenses were placed in 

different articles and subchapters of the criminal code. Id. at 

462, 340 S.E.2d at 713. 
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In this case, the crimes of speeding, reckless driving, and 

felony speeding to elude arrest (when supported by the 

aggravating factors of speeding and reckless driving) all seek 

to deter the same conduct — driving on public roads in a way 

that might endanger public safety or property. In addition, 

unlike the statutes in Gardner, each offense is listed in 

approximately the same section of the Motor Vehicle Act —

Chapter 20 (Motor Vehicles), Article 3 (The Motor Vehicle Act of 

1937), Part 10 (Operation of Vehicles and Rules of the Road). 

Therefore, pursuant to the rationale employed in Gardner, it is 

apparent that the legislature intended for the offenses of 

“speeding” and “reckless driving” to permit alternative, not 

separate, punishments to “felony speeding to elude arrest” when

supported by the aggravating factors of speeding and reckless 

driving. 

Accordingly, we hold that Defendant was unconstitutionally

subjected to double jeopardy when he was convicted of speeding 

and reckless driving in addition to felony fleeing to elude 

arrest based on speeding and reckless driving. As a result, we 

need not address Defendant’s second, alternative, argument on 

appeal. For the foregoing reasons, we arrest judgment on the 
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speeding and reckless driving convictions in 11 CRS 500495 and 

remand for resentencing.

JUDGMENT ARRESTED; REMANDED FOR RESENTENCING.

Judges GEER and ERVIN concur.

 

5 The speeding and reckless driving convictions were consolidated 

for sentencing purposes with other convictions, including felony 

speeding to elude arrest. As a result, Defendant was sentenced 

to 6 to 8 months in prison. This is within the presumptive range 

for felony speeding to elude arrest, alone, when the defendant 

has a prior record level II, as here. See N.C. Gen. Stat. §§ 

15A-1340.17, 20-141.5(b). Though the State does not argue that 

resentencing would be unnecessary in this case, we nonetheless 

point out that the judgment must be remanded because we cannot 

assume that the trial court’s consideration of the speeding and 

reckless driving convictions had no effect on the sentence 

imposed. State v. Brown, 350 N.C. 193, 213, 513 S.E.2d 57, 69–70 

(1999) (“[W]e . . . conclude that the judgment on this offense 

must be remanded for resentencing because the trial court 

consolidated it with the solicitation conviction, which we have 

now vacated, in imposing a single sentence of thirty years, and 

we cannot assume that the trial court’s consideration of two 

offenses, as opposed to one, had no affect [sic] on the sentence 

imposed.”); see also State v. Williams, 150 N.C. App. 497, 505–

06, 563 S.E.2d 616, 621 (2002) (arresting judgment on the crime 

of first degree trespass, when that conviction was consolidated 

for trial with the crime of resisting a public officer, and 

remanding for resentencing on the resisting crime even though 

both crimes had a presumptive sentence of 60 days because 

“whether the crime warrants the sentence imposed in connection 

with the two consolidated crimes is a matter for the trial court 

to reconsider”) (citation omitted).