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State v. Mulder

Court of Appeals of North Carolina

March 18, 2014


Heard in the Court of Appeals: November 7, 2013.

Counsel Amended, March 18, 2014.

Lee County. Nos. 11 CRS 78, 11 CRS 277, 11 CRS 50049-58. Carl R. Fox, Judge.

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.

Attorney General Roy Cooper, by Assistant Attorney General Ms. Karen A. Blum, for the State.

Appellate Defender Mr. Staples Hughes, by Assistant Appellate Defender Ms. Mary Cook, for Defendant-Appellant.

STEPHENS, Judge. Judges GEER and ERVIN concur.


Page 99


Appeal by Defendant from judgments entered 15 October 2012 by Judge Carl R. Fox in Lee County Superior Court.

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 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 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.

Page 100

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.

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 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.


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 ...

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