                               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.
                                   -5-
     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.”
                                        -6-
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 re-

sentencing.

      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
                                         -7-
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.
                                              -9-
(“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
                                           -10-
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
                                    -11-
       “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
                                           -12-
            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
                                     -13-
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).
                                            -14-
      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
                                  -15-
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   —
                                         -17-
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
                                          -19-
            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
                                    -21-
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.
                                         -24-
       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
                              -25-
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).
