An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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 Procedur e.



                                  NO. COA14-895
                         NORTH CAROLINA COURT OF APPEALS

                                Filed: 17 March 2015


STATE OF NORTH CAROLINA

      v.                                         Forsyth County
                                                 Nos. 11 CRS 56748, 12 CRS 777
KORAIN DE-SHAWN WHITE



     Appeal by Defendant from judgments entered 16 September 2013

by Judge David L. Hall in Superior Court, Forsyth County.                         Heard

in the Court of Appeals 2 March 2015.


     Attorney General Roy Cooper, by Assistant Attorney General
     John P. Barkley, for the State.

     Charlotte Gail Blake for Defendant-Appellant.


     McGEE, Chief Judge.


     Korain      De-Shawn      White     (“Defendant”)        appeals      from     the

judgments entered upon his convictions for driving while license

revoked, felony fleeing to elude arrest, reckless driving to

endanger, and having attained habitual felon status.                          For the

reasons stated herein, we find no error in part, but arrest

judgment in 11 CRS 056748, offense numbers 51 and 53, and remand

for resentencing.
                                      -2-
      Defendant was indicted on 4 June 2012, for driving while

license revoked, felony fleeing to elude arrest, and reckless

driving to endanger, based on offenses alleged to have occurred on

7 July 2011.    Defendant was subsequently indicted as an habitual

felon.    Defendant filed a motion in limine on 5 September 2012,

seeking, in part,        to prohibit the State “from mentioning or

eliciting from any witness any alleged acts of prior misconduct on

the part of [D]efendant or any reference to [D]efendant’s past

criminal conviction record,” pursuant to N.C. Rules of Evidence

403 and 404(b).

      Defendant was first tried on 18 March 2013 before Judge Susan

Bray.    Prior to trial, the trial court ruled on Defendant’s motion

in   limine,   stating    that   it   would   allow   testimony   regarding

Defendant’s prior charges from 2010, so long as no mention was

made that the charges resulted in a conviction.            Defendant’s 18

March 2013 trial ended in a mistrial because the jury could not

reach a unanimous verdict.

      Defendant was retried at the 16 September 2013 Criminal

Session of Forsyth County Superior Court, before Judge David L.

Hall.     Prior to trial, Defendant renewed his motion in limine

regarding the presentation of any Rule 404(b) evidence.               Judge

Hall denied Defendant’s motion, incorporating by reference Judge
                                   -3-
Bray’s findings and conclusions and ruling that it was “the law of

the case.”

     Defendant was convicted by a jury of driving while license

revoked, felony fleeing to elude arrest, and reckless driving to

endanger.    Defendant then pled guilty to having achieved habitual

felon status.    The trial court sentenced Defendant to a term of

120 days’ imprisonment for driving while license revoked, and a

concurrent term of 75 to 99 months’ imprisonment on the remaining

charges.    Defendant appeals.

     Defendant    first   argues   that   the   trial    court    abused   its

discretion by allowing the State to present Rule 404(b) evidence.

Defendant contends that Judge Hall erred when he adopted Judge

Bray’s ruling from the first trial and determined it was the law

of the case.    We decline, however, to review Defendant’s argument.

This Court has stated that “[a] motion in limine does not preserve

a question for appellate review in the absence of the renewal of

the objection at trial.”      State v. Crandell, 208 N.C. App. 227,

235, 702 S.E.2d 352, 358 (2010) (citations omitted), disc. review

denied, 365 N.C. 194, 710 S.E.2d 34 (2011).             Defendant failed to

object to the evidence during his second trial.                  Accordingly,

Defendant failed to preserve his challenge to the admission of the
                                      -4-
evidence.    In addition, Defendant does not argue on appeal that

the introduction of any Rule 404(b) evidence prejudiced him.

            “[E]videntiary error does not necessitate a
            new trial unless the erroneous admission was
            prejudicial.” . . . . Evidentiary error is
            prejudicial “when there is a reasonable
            possibility that, had the error in question
            not been committed, a different result would
            have been reached at the trial out of which
            the appeal arises.”   N.C.G.S. § 15A-1443(a)
            (2009). Defendant bears the burden of showing
            prejudice. N.C.G.S. § 15A-1443(a).

State v. Jacobs, 363 N.C. 815, 825, 689 S.E.2d 859, 865-66 (2010)

(citations omitted).

     Defendant next argues that the trial court erred by failing

to arrest judgment on his misdemeanor convictions for reckless

driving and driving while license revoked. Defendant, citing State

v. Mulder, ___ N.C. App. ___, 755 S.E.2d 98 (2014), argues that

the trial court violated his constitutional right against double

jeopardy by entering judgment for both (1) felony speeding to elude

arrest and (2) reckless driving and driving while license revoked.

The State argues that Defendant has waived this issue by failing

to object at trial.

     In Mulder, the defendant was convicted of speeding, reckless

driving,    and   felony   speeding    to   elude   arrest   based   on   the

aggravating factors of speeding and reckless driving, and argued

on appeal that these convictions violated double jeopardy.                The
                                 -5-
defendant in Mulder, like Defendant here, failed to preserve his

argument for appeal. This Court noted that the defendant in Mulder

had failed to preserve his argument for appeal, but nevertheless

chose to invoke N.C.R. App. P. 2 “[t]o prevent manifest injustice”

to consider the defendant’s argument.    Id. at ___, 755 S.E.2d at

101–02.   This Court then determined that reckless driving and

speeding were aggravating factors that were essential elements of

felony speeding to elude arrest, thus subjecting the defendant to

multiple punishment for the same offense when he was convicted of

all three crimes.      Id.   This Court further concluded that our

General Assembly did not intend for felony speeding to elude arrest

to be a separate punishment from speeding and reckless driving.

Id. at ___, 755 S.E.2d at 105.     Therefore, this Court held that

the defendant had been “unconstitutionally subjected to double

jeopardy” and arrested judgment on the speeding and reckless

driving convictions.    Id. at ___, 755 S.E.2d at 106.

     We conclude that the present case is controlled by Mulder.

Although Defendant failed to raise any double jeopardy argument at

trial, as in Mulder, we choose to consider Defendant’s argument.

Defendant was convicted of driving while license revoked, reckless

driving, as well as felony fleeing to elude arrest based on the

aggravating factors of reckless driving and driving while license
                               -6-
revoked.   See N.C. Gen. Stat. § 20-141.5 (b) (3) and (5) (2013).

Accordingly, we arrest judgment on Defendant’s convictions for

driving while license revoked and reckless driving and remand for

resentencing on the remaining convictions.

     No error in part; judgment arrested in 11 CRS 056748, Offense

numbers 51, driving while license revoked, and 53, reckless driving

to endanger; remanded for resentencing.

     No error in part, judgment arrested in part, and remanded for

resentencing.

     Judges STEPHENS and HUNTER, JR. concur.

     Report per Rule 30(e).
