An unpublished opinion of the North Carolina Court of Appeals does not constitute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



                                 NO. COA14-339
                        NORTH CAROLINA COURT OF APPEALS

                             Filed: 21 October 2014


STATE OF NORTH CAROLINA


      v.                                      Davie County
                                              No. 11 CRS 050117
LARRY THOMAS MCGEE



      Appeal by defendant from order entered 11 October 2013 by

Judge J. Lynn Gullet and judgment entered 11 October 2013 by

Judge Theodore S. Royster, Jr. in Davie County Superior Court.

Heard in the Court of Appeals 10 September 2014.


      Attorney General Roy Cooper, by Special Deputy Assistant
      Attorney General Neil Dalton, for the State.

      Kevin P. Bradley, for defendant.


      ELMORE, Judge.


      Larry    Thomas     McGee    (defendant)      appeals     from    an    order

denying his pre-trial motion to suppress all evidence obtained

as the result of an unlawful seizure.                Defendant preserved the

denial of his pre-trial motion for appellate review by timely

objecting to the admission of such evidence at trial.                   Defendant
                                         -2-
also appeals from judgment entered following his conviction for

driving while impaired (DWI), which ordered that he serve twelve

months of imprisonment, suspended, and be placed on eighteen

months of supervised probation.            After careful consideration, we

affirm the pre-trial order and hold that defendant received a

trial free from prejudicial error.

                                         I. Facts

      On   30   January    2011,   defendant      was    charged    with     DWI   by

Trooper Whitener of the North Carolina State Highway Patrol.

The   case    proceeded    to    trial   in    Davie    County    District    Court

(District Court), and defendant was found guilty after a bench

trial.        Defendant    appealed      his   conviction    to    Davie     County

Superior Court (Superior Court) and filed a motion to suppress

evidence as a result of an unreasonable seizure and asserted his

right to a speedy trial by filing a motion to dismiss based on a

denial of his constitutional right to a speedy trial.

      During the suppression hearing, defendant’s sister, Dana

Conrad,      testified    that   she     had   previously    recorded      Trooper

Whitener’s entire testimony during the District Court trial on a

smartphone.      Defendant offered the recording into evidence for

the purpose of refreshing Trooper Whitener’s recollection and to

impeach his testimony, but the State objected.                     Judge J. Lynn
                                       -3-
Gullet sustained the State’s objection, ruling that defendant

failed to sufficiently authenticate the recording.

    Conrad      also   testified    that     on   the   night     of    defendant’s

arrest,   she   recorded   a   video    of      Trooper   Whitener       conducting

field sobriety tests on defendant.              Defendant attempted to offer

the video into evidence, over the State’s objection, to impeach

Trooper Whitener’s testimony.          Judge Gullet again sustained the

State’s objection and refused to admit the video.                      After all of

the evidence was presented on the motion to suppress, Judge

Gullet denied defendant’s motion.               She also denied defendant’s

motion to dismiss for lack of a speedy trial.

                                    II. Analysis

a.) Constitutional Violation

    Defendant      first    contends       that    he     was    denied    a     fair

suppression hearing because Judge Gullet’s refusal to admit the

audio   and   video    recordings   into     evidence      violated      his     sixth

amendment     constitutional    right      to     confront      his    accuser    and

adverse witnesses.      We dismiss this argument on appeal.

    N.C. Appellate Procedure Rule 10(a)(1) mandates that “[i]n

order to preserve an issue for appellate review, a party must

have presented to the trial court a timely request, objection,

or motion, stating the specific grounds for the ruling the party
                                               -4-
desired    the    court      to   make        if    the   specific     grounds     were    not

apparent      from     the    context.”               N.C.      R.   App.   P.     10(a)(1).

Accordingly, “where a theory argued on appeal was not raised

before the trial court, the law does not permit parties to swap

horses between courts in order to get a better mount in the

reviewing court.”            State v. Ellis, 205 N.C. App. 650, 654, 696

S.E.2d 536, 539 (2010) (citations and quotation marks omitted).

This    general      rule     applies          to     constitutional        questions,      as

constitutional issues not raised before the trial court “will

not be considered for the first time on appeal.”                            Id. (citation

omitted).

       During the pre-trial motion to suppress, defendant argued

that    the    recordings         should       be     admitted       because     they     were

sufficiently authenticated.                   At no point did defendant contend

that his constitutional rights would be violated as a result of

Judge   Gullet’s       refusal          to    consider         the   recordings.        Thus,

defendant has not preserved this issue on appeal, and we dismiss

this argument.         See id. (dismissing the defendant’s argument on

appeal that his constitutional rights were violated by the trial

court’s       denial    of        his        motion       to    continue     because       the

“[d]efendant’s argument to the trial court was limited to the

issue of obtaining an expert witness on identification”).
                                  -5-
b.) Audio Recording
    Next,   defendant    argues    that   Judge   Gullet   committed

prejudicial error in ruling that the audio recording of Trooper

Whitener’s trial testimony in District Court was inadmissible

during the motion to suppress in Superior Court.    We disagree.

    We review this issue de novo because Judge Gullet refused

to admit the audio recording into evidence on the basis that it

was not properly authenticated.      See State v. Crawley, 217 N.C.

App. 509, 515, 719 S.E.2d 632, 637 (2011) (“A trial court’s

determination as to whether a document has been sufficiently

authenticated is reviewed de novo on appeal as a question of

law.”).

    Pursuant to North Carolina Rule of Evidence 901, “[t]he

requirement of authentication or identification as a condition

precedent to admissibility is satisfied by evidence sufficient

to support a finding that the matter in question is what its

proponent claims.”    N.C. Gen. Stat. § 8C-1, Rule 901(a) (2013).

All that is required to authenticate an audio tape recording is

“[a] witness’ testimony as to the identity of the declarant

based on personal knowledge[.]”      State v. Mobley, 206 N.C. App.

285, 289, 696 S.E.2d 862, 865 (2010) (citations and quotation

marks omitted).
                                   -6-
    Here,    it   was   established   that   Conrad   had    a     smartphone

capable of making an audio and video recording.          Thereafter, the

following   colloquy    occurred   between   defendant’s     attorney    and

Conrad in an attempt to authenticate the audio recording.

            Q. DID YOU HAVE OCCASION         TO ATTEND      YOUR
            BROTHER’S DISTRICT COURT         TRIAL IN       THIS
            MATTER?

            A. YES, SIR.

            Q. AND WHEN YOU ATTENDED YOUR YOUNGER
            BROTHER’S DISTRICT COURT TRIAL IN THIS
            MATTER, DID YOU HAVE AN AUDIO RECORDING
            DEVICE IN YOUR POSSESSION?

            A. YES, SIR.

            Q. WAS IT THE SMART PHONE OR SOMETHING ELSE?

            A. IT WAS THE SMART PHONE, I BELIEVE, YES.

            Q. AND DID YOU MAKE AN AUDIO TAPE OF THE
            DISTRICT COURT TRIAL?

            A. YES, I DID.

            Q. AND SPECIFICALLY DID YOU MAKE AN AUDIO
            TAPE OF THE TESTIMONY OF THE STATE TROOPER
            AT THAT TRIAL?

            A. YES, SIR.

            Q. DID YOU RECORD THE ENTIRE QUESTIONS AND
            ANSWERS OF HIM BY THE PROSECUTING ATTORNEY
            AND BY HIS DEFENSE ATTORNEY?

            A. YES, SIR.

            Q. AND JUST FOR THE RECORD, DO YOU KNOW THE
            IDENTITY OR DO YOU KNOW THE IDENTITY OR NAME
                     -7-
OF MR. MCGEE’S    DEFENSE   ATTORNEY   IN   THE
DISTRICT COURT?

A. I BELIEVE IT WAS -- HE GOES BY CHUCK
ALEXANDER, BUT CHARLES ALEXANDER, YES, SIR.

Q. AND AFTERWARDS, DID YOU HAVE OCCASION TO
REVIEW THE AUDIO RECORDING OF THE QUESTIONS
AND ANSWERS AT THE DISTRICT COURT TRIAL?

A. YES, SIR.

Q. NOW, DO YOU HAVE WITH YOU THE CAPABILITY
OF SHOWING THE COURT THE AUDIO -- STRIKE
THAT -- SHOWING THE COURT THE VIDEO . . .
AND ALSO PLAYING THE AUDIO?

A. YES.

Q. ALL RIGHT. THE DEVICE YOU HAVE TO DO THAT
IS A COMPUTER?

A. YES.

Q. HAVE YOU TESTED THE COMPUTER TO SEE IF IT
COULD PLAY THESE ITEMS?

A. AS OF A FEW MINUTES AGO IT WAS STILL
WORKING. YES. I HAVE TESTED IT.

Q. OKAY.

. . .

Q. FIRST OF ALL, THE VIDEO, IS THAT ACTUALLY
INSIDE THE COMPUTER OR DO YOU HAVE IT SO YOU
CAN HAVE IT IN YOUR HANDS?

A. AS OF RIGHT NOW IT’S INSIDE THIS COMPUTER
(INDICATING).

Q. WHAT ABOUT THE AUDIO TAPE?

A. YES. IT IS ALSO INSIDE THAT COMPUTER.
                                            -8-


      Defendant     then   moved     to     admit     the    audio   recording       into

evidence.

      Conrad’s      testimony     shows       that    she    attended       defendant’s

District Court trial, heard all of Trooper Whitener’s testimony,

recorded    his   testimony     on      a    smartphone,       reviewed      the    audio

recording,    and    was   able    to       play     the    recording   through      her

computer.     Thus,     defendant         properly     authenticated         the    audio

recording as a matter of law.               See State v. Baker, 112 N.C. App.

410, 418, 435 S.E.2d 812, 817 (1993) (holding that a party met

its burden of authentication because two witnesses “identified

the tape and listened to it, testifying that the tape was a fair

and   accurate    recordation      of       the    conversation      they    held    with

defendant”); see also State v. Stager, 329 N.C. 278, 317, 406

S.E.2d 876, 898 (1991) (“The testimony of the four witnesses

that the tape recording contained the voice of [defendant] was

sufficient to meet the . . . burden of authentication under Rule

901.”).

      Although Judge Gullet erred by failing to admit the audio

recording on the basis of insufficient authentication, defendant

must still show that the error was prejudicial.                         See State v.

Chavis, 141 N.C. App. 553, 566, 540 S.E.2d 404, 414 (2000) (“The

erroneous admission of evidence requires a new trial only when
                                          -9-
the error is prejudicial.”).              Other than constitutional errors,

an 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.” Ellis, 205 N.C. App. at 657-58, 696 S.E.2d at

541 (citation and internal quotation marks omitted).

    Even      though     Judge     Gullet       failed    to   admit    the     audio

recording     into     evidence,         defendant       cross-examined       Trooper

Whitener    about     the   inconsistencies        between     his   testimony     in

District    Court     and   testimony      provided      during   the   motion    to

suppress    in   Superior       Court.      Moreover,      defendant’s    attorney

questioned Conrad about Trooper Whitener’s testimony in District

Court, including        his testimony regarding            defendant’s    location

when he arrived on the scene and where the patrol cars were

parked.

    Thus, in lieu of the audio recording, defendant had the

opportunity      to    elicit    similar        impeachment    evidence       through

Trooper Whitener’s cross-examination and Conrad’s testimony.                       As

such, we hold that defendant failed to show prejudicial error in

Judge Gullet’s failure to admit the audio recording.

c.) Video Recording
                                              -10-
      Defendant         also         argues        that    Judge        Gullet    committed

prejudicial error by failing to admit the video recording into

evidence.      We disagree.

      In light of the analysis above pertaining to the audio

recording, even if Judge Gullet erred in failing to admit the

video recording into evidence, such error was not prejudicial.

Conrad      testified     in    detail        as    to    the    very    issues   defendant

sought to bring to Judge Gullet’s attention through the video—

Trooper Whitener’s administration of the field sobriety tests

and defendant’s ability to walk without swaying.                            Specifically,

Conrad      testified     that       Trooper       Whitener’s      testimony      about   his

administration       of        the     horizontal         gaze     nystagmus      test    was

inaccurate because he

              said he held his finger for four seconds on
              each side twice.   That did not happen.   It
              might have happened one time for a full four
              seconds[.] . . . [O]ne of the things I
              noticed about his testimony was that he said
              he specifically is looking for eye movements
              and jerking.   And when my brother, when he
              put his finger here (indicating), he went
              like this (demonstrating) or more up like
              this (demonstrating), which would have made
              someone jerk their eyes.

Conrad further stated that “[w]here they took him to do the

other test, there wasn’t very much lighting where he would need

to   walk    to   see.”        She     also    testified         that    defendant   walked
                                   -11-
without swaying, and contrary to Trooper Whitener’s testimony,

defendant only lost his balance once during the walk-and-turn

field   sobriety    test.       Thus,     defendant     impeached     Trooper

Whitener’s testimony without the video recording.                Any error by

Judge Gullet in her failure to admit the video recording into

evidence was not prejudicial.

d.) Speedy Trial

    Lastly,      defendant    argues    that     the   State    violated    his

constitutional right to a speedy trial.           We disagree.

    “The      standard   of    review     for     alleged      violations   of

constitutional rights is de novo.”              State v. Graham, 200 N.C.

App. 204, 214, 683 S.E.2d 437, 444 (2009), appeal dismissed and

disc. review denied, 363 N.C. 857, 694 S.E.2d 766 (2010); see

also Piedmont Triad Reg’l Water Auth. v. Sumner Hills Inc., 353

N.C. 343, 348, 543 S.E.2d 844, 848 (2001) (“[D]e novo review is

ordinarily appropriate in cases where constitutional rights are

implicated.”).

    “The right of every person formally accused of crime to a

speedy and impartial trial is secured by the fundamental law of

this State and guaranteed by the Sixth Amendment to the federal

constitution, made applicable to the State by the Fourteenth

Amendment.”    State v. McKoy, 294 N.C. 134, 140, 240 S.E.2d 383,
                                            -12-
387-88 (1978) (citations omitted).                     The only remedy for a denial

of the right to a speedy trial is a dismissal of the criminal

charges.         Id.    at    140,   240    S.E.2d      at    388.       In     reviewing    a

defendant’s claim that the State denied his constitutional right

to a speedy trial, this Court uses “a balancing test in which

the court weighs the conduct of both the prosecution and the

defendant.”       Id.        We must consider four factors: “(1) the length

of the delay; (2) the reasons for the delay; (3) the defendant’s

assertion        of     his     rights;     and      (4)     the     prejudice       to     the

defendant.”           State v. Bare, 77 N.C. App. 516, 519, 335 S.E.2d

748, 750 (1985) (citation omitted).                        “The length of a delay”

factor alone “is not determinative of whether a violation has

occurred.”        Id. (citation omitted).               Instead, the “issue must be

resolved on the facts of each case, and the defendant has the

burden      of    establishing          that   the      delay      was     purposeful        or

oppressive or by reasonable effort could have been avoided by

the State.”       Id. (citations and quotation marks omitted).

       We   now       address    each     of   the     four    factors         to   determine

whether defendant’s right to a speedy trial was violated.

1. Length of the Delay

       We must first determine the relevant time period of delay.

This   Court      has    held     that     when    a    defendant        has    a   trial   in
                                          -13-
District Court but fails to file a motion for a speedy trial,

“the time for computing the delay runs from his appeal from

District    Court      to    Superior   Court    .   .   .     until    his    trial   in

Superior Court[.]”           State v. Friend, ___ N.C. App. ___, ___, 724

S.E.2d     85,    90     (2012),   writ     denied,      review        denied,    appeal

dismissed, 366 N.C. 402, 735 S.E.2d 188 (2012).                    We only analyze

the three remaining factors “[i]f the length of delay approaches

one year[.]”       Id.

    Here,        defendant     never    filed    a    speedy      trial       motion   in

District    Court,       was   found    guilty   of      DWI    after     a    trial   in

District Court, gave notice of appeal from his District Court

conviction on 19 March 2012, and his trial in Superior Court

commenced on 8 October 2013.              Thus, his right to a speedy trial

was delayed almost nineteen months.                   However, this delay does

not result in an automatic determination that defendant’s right

to a speedy trial was violated.              See State v. Webster, 337 N.C.

674, 678, 447 S.E.2d 349, 351 (1994) (“The length of the delay

is not per se determinative of whether a speedy trial violation

has occurred.”).            Rather, the delay triggers our consideration

of the remaining three factors.             See Friend, supra.

2.) Reasons for the Delay
                                       -14-
      Under the second factor, defendant carries the burden to

establish   that     “the     delay    was    caused    by    the   neglect    or

willfulness of the State.”            Friend, ___ N.C. App. at ___, 724

S.E.2d at 90 (citation and internal quotation marks omitted).

      Upon review of the transcript, record, and Judge Gullet’s

findings of fact, the reasons for delay were not a result of

prosecutorial neglect or willfulness.               Defendant did not obtain

an   attorney   of   record    until    22    May   2012,    approximately     two

months after defendant gave notice of appeal to Superior Court.

The State provided discovery to defendant on 4 June 2012, the

next available term of Superior Court.                 Davie County Criminal

Superior Court is generally only held once every other month.

After defendant indicated his intent to file pre-trial motions,

the State waited before calendaring the matter for trial.                     Such

action was a valid reason for delay because if Judge Gullet

granted defendant’s motion, it would have been dispositive to

the case’s outcome.         See State v. Hammonds, 141 N.C. App. 152,

160, 541 S.E.2d 166, 173 (2000) aff’d, 354 N.C. 353, 554 S.E.2d

645 (2001) (“The constitutional guarantee does not outlaw good-

faith delays which are reasonably necessary for the State to

prepare and present its case[.]”).
                                          -15-
    Defendant filed a pre-trial motion to suppress and a motion

to dismiss on 7 January 2013, six months after indicating his

intent to conduct motions pre-trial, and the State immediately

calendared those motions for hearing, but they were not reached

due to other pending trials.              The pre-trial motions were finally

heard during the 22 July 2013 session of Superior Court, and

after Judge            Gullet denied each of defendant’s motions, the

State     calendared      the    matter    for   trial.      The    record   also

indicates       that    defendant’s      attorney    filed   a   designation   of

secured leave, indicating that he would be unavailable for any

Superior Court proceeding for three calendar weeks from 29 July

2013 until 16 August 2013.

    Thus, defendant failed to establish that the delay was a

result of the State’s negligence or willfulness in light of the

various      reasons       for     the      delay,    including      defendant’s

contribution to the delay and the limited sessions of criminal

Superior Court in Davie County.

3.) Defendant’s assertion of his rights

    It     is    well     established     that   a   “defendant’s    failure   to

assert his right to a speedy trial sooner in the process does

not foreclose his speedy trial claim, but does weigh against his

contention that he has been denied his constitutional right to a
                                         -16-
speedy trial.”         Hammonds, 141 N.C. App. at 162, 541 S.E.2d at

174 (citations and internal quotation marks omitted).                     For this

factor, we “presume that the delay is computed from the filing

of the initial charge[.]”                Friend, __ N.C. App. at __, 724

S.E.2d at 90.

      Here, defendant asserted his speedy trial right on 25 July

2013 when he filed a motion to dismiss for lack of a speedy

trial.     He concedes that up until the filing of that motion he

had not “affirmatively assert[ed] his speedy trial right in this

case[.]”        Defendant was charged with DWI on 30 January 2011,

over two years and six months before he asserted his speedy

trial right.        Thus, this third factor weighs against him.

4.) Prejudice to Defendant

      Defendant carries the burden to prove prejudice resulting

from the delay of his trial.               Hammonds, 141 N.C. App. at 163,

541   S.E.2d    at     175.        We    determine      whether   defendant    was

prejudiced     by    the   delay    of    his   trial    by   analyzing    whether

defendant      experienced         oppressive     pre-trial       incarceration,

anxiety and concern, and impairment to his defense.                       State v.

Washington, 192 N.C. App. 277, 291, 665 S.E.2d 799, 808 (2008)

(citation omitted).           Of these three considerations, “the most

serious is the last, as the inability of a defendant adequately
                                         -17-
to prepare his case skews the fairness of the entire system.”

Id. (citation and quotation marks omitted).                    We also note that

“the     need     to     demonstrate      prejudice         diminishes      as     the

egregiousness of the delay increases.”                Id.

       In his brief, however, defendant does not argue that he was

prejudiced as a result of the delay in his trial.                          He merely

contends that the State denied his constitutional guarantee to a

speedy trial by calendaring the case for trial over a year after

defendant’s      counsel     appeared    for    the   first    time   in    Superior

Court.     Even if we accept defendant’s argument as true, he must

still    argue     that      prejudice     occurred         based   on     pre-trial

incarceration,         anxiety     and   concern,      or    impairment      to    his

defense.        We cannot make defendant’s argument for him.                       See

Hammonds, 141 N.C. App. at 162, 541 S.E.2d at 174-75 (addressing

only the “impairment to defense” inquiry because the defendant

argued in his appellate brief that he was prejudiced solely by

this third factor).

       However, even upon review of the record, transcripts, and

Judge Gullet’s findings of fact, defendant failed to establish

prejudice.

       Defendant       was   not   incarcerated       before    trial.     Thus,    he

suffered no oppressive pre-trial incarceration.
                                          -18-
      Defendant     argued       to   Judge    Gullet      that    the     pending    case

caused   anxiety     and    concern       because    he     could        not   sleep,   it

prevented him from applying for better employment, and he could

not obtain legal custody of his daughter.                       While the sleep and

job situations weigh in favor of defendant’s position, defendant

maintains physical custody of his daughter and she lives with

him full-time.       Although defendant demonstrated an appreciable

level of anxiety and concern, we give marginal weight to this

factor in determining prejudice.                 See Webster, 337 N.C. at 681,

447 S.E.2d at 352            (“Although [anxiety and concern] are the

kinds of things the speedy trial right exists to prevent, they

do not loom as large as actual impairment of the defendant’s

ability to defend against the criminal charges themselves.”).

      Finally, defendant argued to Judge Gullet that he exhibited

an    impairment    to     his    defense        because    some     personal        notes

regarding the case were stolen.                However, he testified that all

of his witnesses were still available and he remembered the case

details.    Moreover, several affidavits in the court file detail

the    witnesses’     memories          and    recollection         of     the   events.

Accordingly,   defendant          has    not     shown     an     impairment     to     his

defense as a result of the trial delay.
                                      -19-
    In sum, after conducting a balancing test by considering

the length of the delay, the reasons for the delay, the timing

of defendant’s assertion of his rights, and the prejudice to

defendant,   we   hold   that   the     State   did   not   deny    defendant’s

constitutional right to a speedy trial.

                            III. Conclusion

    We dismiss defendant’s argument that he was denied a fair

suppression hearing due to a violation of his sixth amendment

constitutional rights because the constitutional issue was never

raised before the trial court.           We affirm Judge Gullet’s order

denying   defendant’s    motion    to    suppress     because      she   did   not

commit prejudicial error in failing to admit the audio and video

recordings into evidence.         Finally, we hold that the State did

not violate defendant’s constitutional right to a speedy trial.

    Affirmed, in part, no prejudicial error, in part.

    Judges CALABRIA and STEPHENS concur.

    Report per Rule 30(e).
