An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Proced ure.

NO. COA03-662

NORTH CAROLINA COURT OF APPEALS

Filed: 6 April 2004

STATE OF NORTH CAROLINA

         v.                        Onslow County
                                No. 02 CRS 58795
JAMES MONROE ACKERMAN
    

    Appeal by defendant from judgments entered 18 February 2003 and 20 February 2003 by Judge Thomas D. Haigwood in Onslow County Superior Court. Heard in the Court of Appeals

    Attorney General Roy Cooper, by Assistant Attorney General Jeffrey R. Edwards, for the State.

    Angela Humes Brown for defendant-appellant.

    MARTIN, Chief Judge.

    On 10 December 2002, the Onslow County grand jury indicted defendant on charges of felony speeding to elude arrest, driving while license revoked, reckless driving to endanger, and failure to heed a blue light and siren. During jury voir dire on 17 February 2003, it was discovered that defendant had spoken with a prospective juror earlier in that day. When the trial court stated its belief that defendant “would be someone who is familiar with the court system and the presence of jurors[,]” defendant's counsel conceded that defendant had been in the courthouse before, knew about the jury process, and had “been through the jury process before.” Upon his counsel's advice, defendant did not respond tothe trial court's inquiry as to why he had spoken to members of the jury panel. The trial court stated “[i]f I can't hear his explanation I don't have any other choice [to protect the jury process] so his bond is revoked.”
    After the jury had been selected and excused for the day, defense counsel informed the trial court that defendant wished to explain his contact with the prospective juror. Defense counsel also asked the trial court to reconsider its decision to strike defendant's bond. Upon hearing defendant's explanation, the trial court ruled that defendant would be retained in custody while the case was being tried. Defendant's trial subsequently began and concluded on 18 February 2003.
    At trial, Officer F. T. Hasbargen testified that he saw defendant driving at approximately 10:00 a.m. on 21 August 2002. He knew defendant, a former neighbor, had a revoked driver's license. After making eye contact with the officer, defendant moved out of the turn lane and continued down the road. The officer, who had made a U-turn and was waiting for defendant to turn into the mall parking lot, followed defendant and activated his blue lights. Defendant looked back over his shoulder and made direct eye contact with the officer after he had activated his blue lights. Defendant then made a left turn into a drug store parking lot from a right turn only lane. The officer activated his siren and followed defendant around the drug store parking lot. Defendant drove around the drug store twice at a speed of approximately thirty to forty miles per hour with the officer inpursuit and ran two stop signs before parking at a department store. The officer then placed him under arrest.
    The State introduced evidence of defendant's driver's license record maintained by the North Carolina Division of Motor Vehicles. According to that document, defendant's license was permanently revoked on 10 October 1993. His driver's license record also listed subsequent additional convictions for driving while license revoked, with the most recent conviction occurring in 2001. The trial court denied defendant's motion to dismiss at the close of the State's evidence. Defendant presented no evidence and renewed his motion, which the trial court again denied.
    The jury returned verdicts finding defendant guilty of all charges. The trial court entered four judgments on 18 February 2003, but struck two of the judgments (driving without a license and reckless driving) and modified the judgment for failure to stop for a blue light or siren on 20 February 2003. The trial court sentenced defendant to a term of six to eight months imprisonment for the charge of felony speeding to elude arrest and to a consecutive term of sixty days for the charge of failure to stop for a blue light or siren. Defendant appeals.
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    Defendant first contends the trial court erred by revoking his pretrial bond and by refusing to reset it. He argues the trial court failed to consider his mental and physical disabilities and failed to set new conditions of pretrial release in accordance with N.C. Gen. Stat. § 15A-534 (2003). Defendant asserts that the trialcourt abused its discretion and violated his constitutional rights. His arguments are not persuasive.
    “[I]n addition to modification of a bail bond, a trial judge has discretionary power to order a defendant into custody during the progress of a trial.State v. Perry, 316 N.C. 87, 108, 340 S.E.2d 450, 463 (1986). Defendant's improper contact with at least one potential juror in the courtroom coupled with his inadequate explanation for that contact were legitimate reasons for the trial court's exercise of its discretion to revoke his bond and order him into custody overnight. “There is no prejudicial error so long as that discretion is not exercised in a manner which would convey, either expressly or implicitly, to the jury the slightest intimation that the court had any opinion regarding defendant's credibility as a witness or the strength of his case.” State v. Collins, 19 N.C. App. 553, 555-56, 199 S.E.2d 491, 493 (1973), cert. denied, 285 N.C. 664, 207 S.E.2d 758 (1974). The circumstances surrounding the trial court's action here did not convey any intimation as to an opinion by the trial court. Finally, although defendant argues in his brief to this Court that the trial court's action adversely affected his ability to contact two witnesses, he presented no evidence and “the record contains no indication as to witnesses defendant would have secured or evidence he would have gathered.” State v. Jefferson, 68 N.C. App. 725, 728, 315 S.E.2d 744, 746-47, appeal dismissed, 311 N.C. 766, 321 S.E.2d 151 (1984). This assignment of error is overruled.
    Defendant next contends the trial court erred by denying hismotion to dismiss the convictions for felony speeding to elude arrest and for failure to stop for a blue light and siren. He argues that the State's evidence, which suggested that he stopped within five seconds of the siren being activated, was insufficient evidence to support the charge of failure to stop for a blue light or siren. Defendant further argues the State failed to prove he had notice that his driver's license had been revoked on the date in question. He asserts the evidence was insufficient to support the two required aggravating factors for felony speeding to elude arrest. We disagree.
    Evidence is sufficient to withstand a motion to dismiss when it gives “rise to a reasonable inference of defendant's guilt based on the circumstances.” State v. Styles, 93 N.C. App. 596, 603, 379 S.E.2d 255, 260 (1989). Once sufficient evidence is adduced at trial, it becomes a question for the jury. Id. “This test applies when the evidence is circumstantial, direct, or both.” Id. Pursuant to N.C. Gen. Stat. § 20-157(a) (2003), “[u]pon the approach of any police . . . vehicle giving warning signal by appropriate light and by audible . . . siren . . . , audible under normal conditions from a distance not less than 1000 feet, the driver of every other vehicle shall immediately drive the same to a position as near as possible and parallel to the right-hand edge or curb, . . . and shall stop and remain in such position . . . .” The State's evidence shows that defendant looked back over his shoulder and made direct eye contact with Officer Hasbargen after the officer had activated his blue lights. The officer followeddefendant into the drug store parking lot and activated his siren at that time. Defendant thereafter drove around the drug store twice at a speed of approximately thirty to forty miles per hour, then ran two stop signs before parking at a department store. This evidence, when viewed in the light most favorable to the State, was sufficient to support the submission of the charge to the jury. The trial court properly denied defendant's motion to dismiss the charge of failure to stop for a blue light and siren.
    Defendant contends the State failed to produce sufficient evidence to prove one of the two aggravating factors used to convict him of felony speeding to elude arrest. He argues the State's evidence of the aggravating factor that he was driving with his license revoked was insufficient because the State failed to prove he had notice that his driver's license was in a state of revocation on the date in question. At trial, the State introduced defendant's driver's license record into evidence, which clearly shows defendant's license was permanently revoked on 10 October 1993. His driver's license record also listed subsequent additional convictions for driving while license revoked, with the most recent conviction occurring in 2001. This evidence, when viewed in the light most favorable to the State, was sufficient to support the trial court's submission of this aggravating factor for felony speeding to elude arrest to the jury. These assignments of error are overruled.
    In his final argument, defendant contends the trial court committed plain error by failing to arrest judgment for failure tostop for a blue light and siren after convicting and sentencing him for felony speeding to elude arrest. He complains the felony enhancement of the charge of speeding to elude arrest is a violation of double jeopardy. Defendant claims the evidence which proves the aggravating factor of reckless driving necessary for the charge of felony speeding to elude arrest takes into account his failure to stop for a blue light and siren. His argument is not persuasive.
    Our appellate courts have applied plain error review only to jury instructions and evidentiary rulings. State v. Childress, 321 N.C. 226, 234, 362 S.E.2d 263, 268 (1987). Defendant never raised this issue with the trial court and therefore may not now seek to raise the issue of double jeopardy for the first time before this Court. See State v. McKenzie, 292 N.C. 170, 175, 232 S.E.2d 424, 428 (1977). We note, furthermore, that the two offenses require different elements and therefore would not constitute double jeopardy. See N.C. Gen. Stat. § 20-157(a) (2003); see also N.C. Gen. Stat. § 20-141.5 (2003). Defendant received a fair trial, free from prejudicial error.
    No error.
    Judges McGEE and BRYANT concur.
    Report per Rule 30(e).

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