State v. White ( 2015 )

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling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