An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-396
                       NORTH CAROLINA COURT OF APPEALS

                              Filed: 7 January 2014


STATE OF NORTH CAROLINA

      v.                                      Mecklenburg County
                                              No. 07 CRS 234510-16
JAMAL LABAR FLOYD,



      Appeal by defendant from judgment entered 24 May 2012 by

Judge Forrest D. Bridges in Mecklenburg County Superior Court.

Heard in the Court of Appeals 26 September 2013.


      Attorney General Roy Cooper, by Special Deputy                      Attorney
      General Daniel Snipes Johnson, for the State.

      James N. Freeman, Jr., for defendant-appellant.


      STEELMAN, Judge.


      The trial court did not err in denying defendant’s motion

to dismiss based upon an alleged speedy trial violation.                      Where

defendant’s actions in restraining his victims were separate and

apart from those inherent in the crime of robbery, the trial

court did not err in denying defendant’s motion to dismiss the

charge of kidnapping.           There was evidence in the record that
                                      -2-
supported the trial court’s instructions to the jury on flight

and how to consider a statement made by defendant.

                   I. Factual and Procedural Background

    On 26 June 2007, a black man wearing a black bandanna,

dreadlocks,       and   no   shirt   entered     the    Aga    Thyme   store    in

Charlotte, ordering three women to put their hands up and show

him where the money was.             Of his face, only his eyes were

visible.      As he led the women to the rear of the store to

retrieve    the    cashbox,    one   of    the   women,    Julianna      Canfield,

observed that what she thought was a gun was a pipe covered in

tin foil.     After the man took the money from the cashbox, he

asked about the location of the bathroom.                     He instructed the

women to go into the bathroom.               The women waited, and after

hearing nothing for several minutes, they opened the bathroom

door and called the police.

    Officers with the Charlotte Mecklenburg Police Department

(CMPD) arrived at the scene in response to reports of a black

man without a shirt behind a nearby shopping center.                   When they

arrived,    the    employees    of   Aga    Thyme      informed   them    of   the

robbery.    Officer Ashley Edmondson was on patrol when she heard

the report of the robbery and the description of the suspect.

As she was driving towards the store, she observed a black man
                                  -3-
with dreadlocks in blue jeans, but when she approached him, he

fled.

       On 27 June 2007, CMPD patrol officers arrested a suspicious

black man in a camouflage hoodie, who identified himself as

Jamal Floyd (defendant).     While being arrested, defendant stated

that he did not do it, but that he knew who did and where the

money was.

       On 9 July 2007, Canfield was asked by police to identify

the robber from a photographic lineup.     She identified defendant

as the robber.

       On 4 September 2007, defendant was indicted for two counts

of robbery with a dangerous weapon, four counts of attempted

robbery with a dangerous weapon, three counts of second-degree

kidnapping, and one count of assault on a female.         On 6 May

2008, defendant was taken into custody, and released on bond on

20 February 2009.       In February of 2011, defendant was again

arrested and charged with unrelated criminal activity committed

in 2008.     Defendant remained in custody until trial.

       On 12 March 2012, defendant filed a motion to dismiss for

violation of his right to a speedy trial.1    On 29 March 2012, the

trial court denied this motion.



1
    Defendant contends that a previous motion for speedy trial was
                                         -4-
         On 24 May 2012, a jury found defendant guilty of one count

of   common     law    robbery,   two     counts      of     attempted   common     law

robbery, three counts of second-degree kidnapping, and assault

on   a    female.      The   trial      court    sentenced       defendant     to   two

consecutive terms of 29-44 months imprisonment, with a third

sentence of the same duration suspended for thirty months with

11 months of that sentence to be active.

         Defendant appeals.

                         II. Right to a Speedy Trial

         In his first argument, defendant contends that the trial

court     erred   in   denying    his    motion       to    dismiss    based   upon    a

violation of his right to a speedy trial.                    We disagree.

                             A. Standard of Review

         “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).

         “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



filed in July of 2010, but had never been heard.   The trial
court acknowledged this in its findings.   However, no such
motion is found in the record.
                                   -5-
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.”).



                              B. Analysis

    In the case of Barker v. Wingo, 407 U.S. 514, 33 L.Ed.2d

101 (1972), the United States Supreme Court set forth a four-

part test for determining if a defendant had been denied his

constitutional right to a speedy trial.          These four elements are

(1) the length of the delay, (2) the reason for the delay, (3)

the defendant’s assertion of his right to a speedy trial, and

(4) prejudice to defendant resulting from the delay.              Barker at

530-32, 33 L. Ed. 2d at 117-18.             Our Supreme Court held that

this analysis applies when a defendant asserts a violation of

North Carolina’s speedy trial law.           State v. Grooms, 353 N.C.

50, 62, 540 S.E.2d 713, 721 (2000).          There is no exact calculus

in balancing these factors; rather, they are to be considered

together   on   a   case-by-case   basis,    with   no   one   factor   being

outcome-determinative.      State v. Washington, 192 N.C. App. 277,

282-83, 665 S.E.2d 799, 803 (2008).          If a defendant establishes
                                     -6-
that the factors weigh in his favor, the charges against him

should be dismissed.       Id. at 297-98, 665 S.E.2d at 812.

      The first of the four Barker factors is the length of the

delay.     In the instant case, defendant was arrested and indicted

in 2007, and tried in 2012.         We have previously held that “[a]

defendant’s right to a speedy trial attaches upon being formally

accused of criminal activity, by arrest or indictment.                      The

period relevant to speedy trial analysis ends upon trial.                    If

the   length   of   delay     approaches    one     year,   we    examine   the

remaining three factors in Barker.” State v. Friend, ___ N.C.

App. ___, ___, 724 S.E.2d 85, 90 (2012) (citations omitted).

Since the delay in this case was approximately five years, we

must examine the remaining Barker factors.

      With regard to the second Barker factor, the reason for the

delay, defendant bears the burden of “presenting prima facie

evidence     that   the     delay   was    caused     by    the   neglect    or

willfulness” of the State.          Washington, 192 N.C. App. at 283,

665 S.E.2d at 804.        In the instant case, the trial court found:

            9.   That    during the period of 2008 through
            2012 the      Defendant has had, for various
            reasons,    three attorneys representing him,
            including    his current attorney appointed in
            August of   2011.

            10. That one of his previous attorneys was
            allowed to withdraw as a result of a
                                   -7-
         complaint made by the Defendant to the State
         Bar giving rise to an inability of the
         attorney   to   adequately   represent   the
         Defendant.

         11. That in addition the Defendant's cases
         were delayed for approximately nine months
         as a result of a medical leave taken by the
         attorney originally appointed to represent
         the Defendant.

         12. That these matters have been scheduled
         for multiple pre-trial readiness conferences
         with the various attorneys representing the
         Defendant.

         . . .

         17. That the reasons for the delay in the
         trial of all of the Defendant’s charges
         include the change of attorneys by the
         Defendant, the medical leave by a previous
         attorney, the failure of the cases to be
         reached on the trial calendar, efforts by
         the   State    to   try   matters   involving
         Defendants who are in [sic] incarcerated
         rather than released on bond (including
         electronic   monitoring)   and  the   general
         backlog of criminal Superior Court cases.

    In reviewing the trial court’s findings with regard to the

reasons for the delay, it appears that while some of the delay

may have been caused by the actions or inaction of the State, a

substantial   amount   of   the   delay   was   caused   by   defendant’s

decision to change lawyers, defense counsel’s medical leave, and

the unfortunate backlog of cases in our state’s Superior Courts.

We hold therefore that the delay was not caused primarily by the
                                 -8-
neglect or willfulness of the State, and the trial court did not

err in so holding.

    With regard to the third factor, defendant’s assertion of

his right to a speedy trial, our Supreme Court has held that a

“[d]efendant’s failure to assert his right to a speedy trial, or

his failure to assert his right sooner in the process, does not

foreclose his speedy trial claim, but does weigh against his

contention[.]”   Grooms, 353 N.C. at 63, 540 S.E.2d at 722.   In

the instant case, the trial court found:

         15. That in July of 2010 a separate motion
         for speedy trial was filed by a previous
         attorney for the Defendant but was not heard
         by the Court.

         16. That it is unknown to the State or the
         Defendant's attorney why the previously
         filed motion for a speedy trial was not
         heard.

    The trial court further observed that defendant’s present

“motion for a speedy trial, motion to dismiss were properly

noticed and before the Court.”

    In Grooms, the defendant’s assertion of his right to speedy

trial came nearly three years after indictment, and the Court

held that this delay weighed against his claim.   In the instant

case, as in Grooms, we hold that this three-year delay weighs

against defendant.
                                -9-
    With regard to the fourth factor, prejudice to defendant

resulting from the delay, the trial court         made no findings.

Defendant contends that he was prejudiced by the unavailability

of “key witness” Kaylah Roberson, but does not suggest how her

testimony would have had a probable impact on the result of the

case.

    In its conclusions of law, the trial court held:

           3.   That the reasons for the length of the
           delay were a combination of the failure of
           the cases to be reached on the trial
           calendars as well as delays resulting from
           Defendant’s decision to change attorneys on
           two occasions since his original arrest and
           the lengthy medical leave.

           4.   That based on these factors the Court
           concludes that the delay in the trial of
           this matter is not due to willfulness of the
           State or any administrative neglect on the
           part of the State but rather due to a
           combination of factors for which both the
           State and the Defendant are responsible.

           5.   That in balancing the factors including
           the length of the delay, the time in which
           the Defendant filed this motion, the reasons
           for the delay and the lack of any showing of
           prejudice   by  the   Defendant,  the   Court
           concludes that Defendant’s constitutional
           right to a speedy trial has not been denied.

    Despite    offering   arguments   with   regard   to   the   Barker

factors, defendant does not challenge the trial court’s findings

of fact.   Findings of fact that are not challenged are binding
                                  -10-
on appeal.    Koufman v. Koufman, 330 N.C. 93, 97, 408 S.E.2d 729,

731 (1991).

    We hold that (1) the delay was presumptively prejudicial,

meriting an examination of the other Barker factors; (2) the

State’s willful or negligent actions were not the cause of the

delay; (3) defendant’s three-year delay in asserting his right

to speedy trial weighs against him; and (4) defendant has not

adequately argued that absent the delay, the jury would have

returned a different verdict.         Accordingly, we hold that the

trial court did not err in denying defendant’s motion to dismiss

based upon an alleged violation of defendant’s right to a speedy

trial.

    This argument is without merit.

                          III. Motion to Dismiss

    In his second argument, defendant contends that the trial

court erred in denying his motion to dismiss the kidnapping

charges   because   the   restraint   involved   in   those   charges   was

inherent to the robbery charges.       We disagree.

                          A. Standard of Review

    “This Court reviews the trial court’s denial of a motion to

dismiss de novo.” State v. Smith, 186 N.C. App. 57, 62, 650

S.E.2d 29, 33 (2007).
                                          -11-
                                    B. Analysis

       Our Supreme Court has held that the “restraint” which is

“an    inherent,      inevitable       element    of    another    felony,   such     as

armed       robbery     or    rape,”     cannot        support    the     offense     of

kidnapping, thus permitting conviction and punishment for both

crimes arising from a single act.                 State v. Irwin, 304 N.C. 93,

102,    282    S.E.2d    439,    446    (1981).        Rather,    that    “restraint”

needed to constitute a kidnapping must be separate and apart

from that inherent in the commission of another felony.                           State

v. Johnson, 337 N.C. 212, 221, 446 S.E.2d 92, 98 (1994).

       Defendant relies on Irwin, in which the defendant forced

the victim at knifepoint to walk to the prescription counter and

safe.       In that case, the Supreme Court held that the victim’s

removal to the safe at the back of the store was an integral

part of the attempted robbery, the objective of which was to

obtain drugs.

       In     the   instant     case,    however,      defendant    did    more     than

merely remove the women to the back of the store while he opened

the cashbox.        Having completed the robbery, he then removed them

to the bathroom.         These facts are similar to those in State v.

Davidson, 77 N.C. App. 540, 335 S.E.2d 518, disc. review denied,

314 N.C. 670, 337 S.E.2d 583 (1985).                     In Davidson, defendant,
                                          -12-
while robbing a store, removed the occupants of the store to a

dressing room.         We held that:

            Since none of the property was kept in the
            dressing room, it was not necessary to move
            the victims there in order to commit the
            robbery. Removal of the victims to the
            dressing room thus was not an inherent and
            integral part of the robbery. Rather, as in
            Newman, it was a separate course of conduct
            designed to remove the victims from the view
            of passersby who might have hindered the
            commission of the crime. The evidence thus
            was sufficient under N.C. Gen. Stat. 14-39
            to sustain the kidnapping convictions, and
            the court properly denied defendant's motion
            to dismiss the kidnapping charges.

Davidson at 543, 335 S.E.2d at 520.                   See also State v. Joyce,

104 N.C. App. 558, 567, 410 S.E.2d 516, 521 (1991), disc. review

denied,    331    N.C.    120,   414      S.E.2d   764   (1992)     (holding      that

removals    which      were   “not   an    integral    part   of    the   crime   nor

necessary to facilitate the robberies” were more comparable to

Davidson than to Irwin).

    Defendant contends that the kidnapping charges should have

been dismissed because the women in the Aga Thyme store were not

subjected to any greater danger than from the robbery by being

removed    to    the    bathroom.      Nonetheless,      we   are    bound   by   the

precedent found in Davidson and Joyce.                In re Civil Penalty, 324

N.C. 373, 384, 379 S.E.2d 30, 37 (1989).                      We hold that this

second removal, subsequent to the completion of the robbery, was
                                         -13-
a     distinct     act,   separate      and     apart     from    defendant’s        acts

integral to the robbery.            We hold that the trial court did not

err    in   denying    defendant’s      motion      to    dismiss     the    kidnapping

charges.

       This argument is without merit.

                               IV. Jury Instructions

       In his third argument, defendant contends that the trial

court erred or committed plain error by giving instructions to

the jury which were not supported by the evidence.                     We disagree.

                               A. Standard of Review

       “[Arguments]       challenging         the    trial       court’s      decisions

regarding jury instructions are reviewed de novo by this Court.”

State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149

(2009). “The prime purpose of a court’s charge to the jury is

the    clarification      of    issues,       the   elimination       of     extraneous

matters, and a declaration and an application of the law arising

on    the   evidence.”    State    v.    Cameron,        284   N.C.   165,    171,    200

S.E.2d 186, 191 (1973), cert. denied, 418 U.S. 905, 41 L. Ed. 2d

1153 (1974). “[A] trial judge should not give instructions to

the jury which are not supported by the evidence produced at the

trial.”      Id.    “Where      jury    instructions           are    given     without
                                   -14-
supporting evidence, a new trial is required.” State v. Porter,

340 N.C. 320, 331, 457 S.E.2d 716, 721 (1995).

                             B. Analysis

    During the jury charge conference, defendant objected to

proposed jury instructions on flight and on defendant’s alleged

admission upon his arrest on 27 June 2007.            The trial court

overruled these objections and instructed the jury on flight, as

follows:

           One of the circumstances that the State
           contends and the defendant denies in this
           case is that the defendant fled. I instruct
           you   that   evidence   of  flight  may   be
           considered by you together with all other
           facts and circumstances in this case in
           determining     whether    those    combined
           circumstances amount to an admission or show
           a consciousness of guilt. I instruct you,
           however, that proof of this circumstance --
           that is, a circumstance of fleeing or flight
           -- is not sufficient in itself to establish
           guilt.

    Defendant argued at trial, and contends on appeal, that

this instruction was erroneous, because Officer Edmondson did

not positively identify defendant as the man who fled from her.

    Our Supreme Court has held that “an instruction on flight

is justified if there is ‘some evidence in the record reasonably

supporting   the   theory   that    the   defendant   fled   after   the

commission of the crime charged.’”        State v. Blakeney, 352 N.C.
                                         -15-
287, 314, 531 S.E.2d 799, 819 (2000) (quoting State v. Allen,

346 N.C. 731, 741, 488 S.E.2d 188, 193 (1997)).

      In the instant case, there was evidence other than Officer

Edmondson’s     testimony        that    defendant         expeditiously    left        the

scene of the robbery.             Specifically, evidence tended to show

that the police arrived promptly, that they canvassed the area

with dogs and a helicopter, and that they were unable to find

the robber.     Evidence that an exhaustive search failed to reveal

a defendant may support a jury instruction on flight.                       See State

v.   Patterson,     332   N.C.    409,       420,    420   S.E.2d    98,   104    (1992)

(holding     that   evidence      of     an    exhaustive      twelve-year        police

search for defendant “clearly supports the inference that the

defendant     was    avoiding       apprehension,            thus    supporting         the

instruction on flight.”).

      This    evidence,     taken       as    a     whole,   tends    to   show        that

defendant quickly fled from the scene of the robbery.                                  Even

assuming     arguendo     that    Officer      Edmondson’s      testimony        was    not

sufficient to support the flight instruction, we hold that there

was other evidence in the record sufficient to support the trial

court’s flight instruction.

      The trial court also instructed the jury that:

             The State also contends and the defendant
             denies that the defendant has admitted one
                                          -16-
             or more facts relating to the crime charged
             in this case. I instruct you that if you
             find from the evidence that the defendant
             has admitted any fact relating to the crime
             charged in this case, then you should
             consider all of the circumstances under
             which that admission was made in determining
             whether it was a truthful admission and the
             weight that you will give to it.

      Defendant argued at trial, and contends on appeal, that

this instruction was erroneous.                   The statement that defendant

allegedly gave upon his arrest was “I didn’t do it, but I know

who   did    and   where       the   money      is.”    Defendant     contends    that

nowhere is “it” identified as the crime in this case, and thus

that this admission was not “relating to the crime charged in

this case.”

      “An admission is a statement of pertinent facts which, in

light of other evidence, is incriminating.”                      State v. Trexler,

316   N.C.   528,       531,   342     S.E.2d    878,   879-80   (1986).     In    the

instant case, defendant was apprehended the day after the money

was   stolen,      in    the    same    neighborhood,      and   he   informed    the

apprehending officer that he “didn’t do it[,]” whatever “it”

might be, but he “knew where the money [was].”                      In light of the

circumstances of his arrest, this statement raised a sufficient

question of fact for a jury to be instructed upon it.                      Further,

the trial court’s instruction did not compel the jury to find
                             -17-
that the statement was an admission, but rather permitted the

jury to decide whether there was an admission and the weight to

be given to the statement.   We hold that there was sufficient

evidence presented by the State to support the trial court’s

instruction.

    This argument is without merit.

    NO ERROR.

    Judges HUNTER, ROBERT C. and BRYANT concur.

    Report per Rule 30(e).
