An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA 14-51
                         NORTH CAROLINA COURT OF APPEALS
                            Filed:     2 September 2014
STATE OF NORTH CAROLINA

                                              Robeson County
      v.
                                              Nos. 05 CRS 12241, 55647

GARY MAURICE WALTERS


      Appeal by defendant from judgments entered 28 June 2013 by

Judge   William     R.    Pittman    in   Robeson    County     Superior    Court.

Heard in the Court of Appeals 5 June 2014.


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

      Attorney Paul F. Herzog for Defendant.


      ERVIN, Judge.


      Defendant      Gary    Maurice      Walters   appeals     from    judgments

entered based upon his convictions for first degree kidnapping,

attempted first degree murder, and assault with a deadly weapon

with the intent to kill inflicting serious injury.                     On appeal,

Defendant contends that the trial court erred by (1) denying his

motion to dismiss the charges that had been lodged against him

on the basis of an alleged violation of his right to a speedy
                                      -2-
trial and (2) instructing the jury concerning the issue of his

guilt of first degree kidnapping.              After careful consideration

of   Defendant’s   challenges    to     the    trial    court’s   judgments    in

light of the record and the applicable law, we conclude that the

trial court’s judgments relating to Defendant’s convictions for

attempted first degree murder and assault with a deadly weapon

with the intent to kill inflicting serious injury should remain

undisturbed and that Defendant is entitled to a new trial in the

case in which he was convicted of first degree kidnapping.

                         I. Factual Background

                           A. Substantive Facts

                           1. State’s Evidence

      On   Wednesday,    17    August     2005,    Paul     Franklin   was     in

Lumberton.    On that evening, Mr. Franklin was “upset over [his]

marriage   situation.”        Based     upon    previous    experiences,      Mr.

Franklin knew that a prostitute could lead him to a place at

which he could purchase cocaine.               As a result, Mr. Franklin

picked up “an African American young lady,” whom he described as

“short, peti[t]e,” at the intersection of Carolina Avenue and

First Street.

      After   purchasing      crack     cocaine    on     First   Street,     Mr.

Franklin and the young woman drove to the Redwood Inn, where Mr.

Franklin rented a room in which he and the young woman smoked
                                                -3-
the small amount of cocaine that Mr. Franklin had purchased.

Once the cocaine in Mr. Franklin’s possession had been consumed,

the woman offered to call her cousin if Mr. Franklin wanted more

cocaine.       After meeting Defendant, who was the woman’s cousin,

Mr. Franklin bought cocaine from him.

       Over        the    course       of     the     next      two    days,     Mr.     Franklin

continued to buy and smoke cocaine.                          After running out of money

with which to purchase additional cocaine, Mr. Franklin allowed

Defendant      to        use    his    gray    Ford    Windstar.           According      to    Mr.

Franklin, Defendant returned to Mr. Franklin’s room every “five,

six,       eight    hours”       and    gave    him    a     new      supply   of    cocaine     in

exchange for the use of the van.

       On     the    early       morning       of     Friday,         19   August      2005,    Mr.

Franklin asked Defendant to take him to an ATM to make a $100

withdrawal from his account, into which his weekly wages had

been deposited.1               As a result, Defendant and Mr. Franklin drove

to an ATM near the Redwood Inn at approximately 3:30 a.m.                                      After

Mr.    Franklin          told    Defendant      that       he    would     buy   a     “third    of

cocaine” with the proceeds obtained during the ATM transaction,

Defendant brought cocaine to Mr. Franklin’s hotel room at the

Redwood Inn.             Mr. Franklin, however, claimed that the cocaine

       1
      At the time of the incident, Mr. Franklin worked as a truck
driver for Florida Rock and Tank out of Navassa, which is
located near Wilmington.
                                        -4-
that   Defendant     offered    him   was     only   worth   $75.00.     At    that

point, Defendant broke off a wooden table leg from a piece of

hotel room furniture.

       Christopher Bass and Shelly Scott                woke to the sound        of

Defendant, who was a friend of Mr. Bass, knocking on their door

and asking to speak with Mr. Bass at approximately 5:30 or 6:00

a.m.   on   19    August    2005.     At    Defendant’s      request,   Mr.    Bass

followed Defendant, who was driving Mr. Franklin’s gray Ford

Windstar,    in    Ms.     Scott’s    Honda    Civic.        After   driving   for

approximately twenty minutes, Defendant parked beside the Lumber

River near the Three Bridges Road in or around Pembroke.

       After Mr. Bass parked on the main road and walked down to

the location at which the van was parked, Defendant opened the

van door.    At that point, Mr. Bass saw Mr. Franklin lying on the

rear passenger seat.           According to Mr. Bass, Mr. Franklin was

breathing heavily and his “face was mangled and beat up.”                      When

Defendant asked Mr. Bass if “he should kill [Mr. Franklin],” Mr.

Bass questioned Defendant about “why he did it” and “what [had]

happened.”       In response, Defendant explained that Mr. Franklin’s

injuries resulted from “a drug deal gone wrong” and that he had

beaten Mr. Franklin with a wooden table leg at the Redwood Inn.

After telling Defendant that he should not kill Mr. Franklin,

Mr. Bass began walking back to the Honda Civic.                  Once Defendant
                                              -5-
entered the Honda Civic as well, Mr. Bass drove Defendant to the

residence      of       his    mother    in    Fairmont      before          returning       home

himself.

      According to Ms. Scott, Mr. Bass “flipped out and assaulted

[her]” when he returned home.                      Mr. Bass, who claimed to have

“seen   someone         with    their    face      hanging       off”    and    “their       eyes

popped out of their head,” was “screaming and cussing.”                                      Over

the course of the next several hours, Mr. Bass assaulted Ms.

Scott’s mother and brother as well.                        Although Mr. Bass nailed

the windows to the residence that he shared with Ms. Scott shut

and   fed   her     sleeping         pills    in    an   attempt        to    keep   her     from

leaving, Ms. Scott eventually escaped and called 911.                                  Mr. Bass

corroborated        Ms.       Scott’s   story      after    turning          himself    in    and

being charged with three counts of assault.

      At 7:01 a.m. on 19 August 2005, emergency medical service

personnel were dispatched to a location off Three Bridges Road,

where   they      found        Mr.    Franklin      in     his    van.         Although       the

attending    emergency           medical      service      personnel         were    initially

unable to determine              whether Mr. Franklin was                    still alive, a

check of his vital signs established that he was in critical

condition.       As a result, the emergency medical service personnel

utilized the standard trauma response protocol by placing Mr.

Franklin    on      a    backboard      and    stretcher,        administering          oxygen,
                                       -6-
fitting a brace around his neck, providing him with intravenous

fluids, and putting him on a cardiac monitor.

       At 9:56 a.m. on 19 August 2005, investigating officers were

dispatched to the Redwood Inn in response to notice that Mr.

Franklin’s       room   had   been   found    in    disarray.      During      their

examination       of    Mr.   Franklin’s      room,    investigating      officers

discovered blood on the walls, the air conditioning unit, the

microwave, broken pieces of furniture, and the floor.                     A number

of pieces of wood that had originally constituted a table leg,

one of which bore Defendant’s fingerprint, were recovered from

the room as well.

       Mr. Franklin sustained severe facial injuries as a result

of the beating that he received, with every bone in his face

having    been    broken.      Mr.   Franklin       underwent    eight    surgical

procedures in order to repair the damage.                     After Mr. Franklin

contracted a Staph infection during one of these procedures, the

attending    physicians       were   unable    to     fully   repair     his   nose.

Although his attending physicians were able to use a skin graft

taken from his right arm to address the injuries to his nose,

Mr. Franklin still has difficulty breathing and suffers from

sleep apnea.       In addition, Mr. Franklin sustained left eye optic

nerve damage, which causes him to experience double vision and

have     difficulty     seeing.      Finally,       Mr.   Franklin’s      face   is
                                         -7-
severely scarred.         Although he is no longer on disability, Mr.

Franklin could not return to work as a truck driver given his

inability to pass the commercial driver’s license examination.

                             2. Defense Evidence

       Defendant’s mother, Dorothy Walters, testified that her son

was living    at her residence in Fairmont                 during    August 2005.

More   specifically,      Ms.   Walters        testified     that   Defendant     was

still at home in bed when she left the house at 7:30 a.m. on 18

August 2005; that he was outside in the yard when she returned

from   work   at   2:30    p.m.;   and    that    he   was    at    home   when   she

returned from fishing with her daughter at approximately 8:00

p.m.    Although Defendant was not at home at 8:30 p.m. on 18

August 2005, he returned home between 9:00 and 10:00 p.m. and

was still at home at 6:00 a.m. on 19 August 2005.                     According to

Ms. Walters, Defendant left to cut his grandfather’s lawn at

approximately 9:30 to 9:45 a.m. on 19 August 2005 and returned

at approximately 1:00 p.m.

                             B. Procedural Facts

       On 30 August 2005, a warrant for arrest charging Defendant

with attempted first degree murder was issued.                      On 8 September

2005, a warrant for arrest charging Defendant with first degree

kidnapping was issued.          On 8 May 2006, the Robeson County grand

jury returned bills of indictment charging Defendant with first
                                      -8-
degree kidnapping, attempted first degree murder, and assault

with a deadly weapon with the intent to kill inflicting serious

injury.    On 21 September 2012, Defendant filed a motion seeking

the    entry   of   an   order   dismissing   the   charges     that   had   been

lodged against him on speedy trial grounds.

       The charges against Defendant came on for trial before the

trial court and a jury at the 24 June 2013 criminal session of

the Robeson County Superior Court.            On 25 June 2013, the trial

court denied Defendant’s dismissal motion.            On 28 June 2013, the

jury    returned    verdicts     convicting   Defendant    of    first   degree

kidnapping, attempted first degree murder, and assault with a

deadly weapon with the intent to kill inflicting serious injury.

At the conclusion of the ensuing sentencing hearing, the trial

court entered judgments sentencing Defendant to a term of 220 to

273 months imprisonment based upon his conviction for attempted

first degree murder, to a consecutive term of 110 to 141 months

imprisonment based upon his conviction for assault with a deadly

weapon with the intent to kill inflicting serious injury, and to

a consecutive term of 110 to 141 months imprisonment based upon

his conviction for first degree kidnapping.               Defendant noted an

appeal to this Court from the trial court’s judgments.

                             II. Legal Analysis

                         A. Right to a Speedy Trial
                                          -9-
    In his initial challenge to the trial court’s judgments,

Defendant contends that the trial court “committed prejudicial

error when it denied [his] motion to dismiss for lack of speedy

trial.”     More specifically, Defendant contends that the delay

involved in this case was significant, that the lengthy delays

revealed by the present record were attributable to the State

rather    than       to    Defendant,         that     the    State       did    not    call

Defendant’s      case      for   trial    for        more    than   a     year   after   he

asserted his right to a speedy trial, and that Defendant was

clearly prejudiced by the lapse in time between the date upon

which he was charged and the date upon which this case was

called for trial given the weakness of the alibi defense that he

was able to present before the jury.                         Although the delay at

issue here is, as best we can tell, unprecedented, we conclude,

based    upon    a    careful    analysis        of    the    applicable         law,   that

Defendant   is       not   entitled      to    relief       from    the    trial   court’s

judgments on the basis of this contention.

                          1. Applicable Legal Principles

    Every individual formally accused of committing a crime has

the right to a speedy trial.                   State v. Lyszaj, 314 N.C. 256,

261, 333 S.E.2d 288, 292 (1985); State v. Avery, 302 N.C. 517,

521, 276 S.E.2d 699, 702 (1981).                     More specifically, the Sixth

Amendment to the United States Constitution, which has been made
                                   -10-
applicable to the states under the Fourteenth Amendment, Klopfer

v. North Carolina, 386 U.S. 213, 222, 87 S. Ct. 988, 993, 18 L.

Ed. 2d 1, 8 (1967) provides, in pertinent part, that, “[i]n all

criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial[.]”        U.S. Const. amend. VI.      Similarly,

Article   I,   Section   18   of   the    North   Carolina   Constitution

provides that “[a]ll courts shall be open[] [to] every person .

. . without favor, denial, or delay.”         N.C. Const. art. 1, § 18.

When reviewing speedy trial claims, we employ the same analysis

for purposes of both the Sixth Amendment and Article I, Section

18.    State v. Flowers, 347 N.C. 1, 27, 489 S.E.2d 391, 406

(1997), cert. denied, 522 U.S. 1135, 118 S. Ct. 1094, 140 L. Ed.

2d 150 (1998).    “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).

      In evaluating the validity of a defendant’s claim to have

been deprived of his state and federal constitutional right to a

speedy trial, reviewing courts consider four factors:           “(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 [the] defendant[.]”          State v. Washington, 192 N.C.

App. 277, 282, 665 S.E.2d 799, 803 (2009); see also Barker v.
                                       -11-
Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 2192-93, 33 L. Ed.

2d 101, 117 (1972).

           We   regard   none  of   the   four  factors
           identified above as either a necessary or
           sufficient condition to the finding of a
           deprivation of the right of speedy trial.
           Rather, they are related factors and must be
           considered   together    with   such   other
           circumstances as may be relevant.    In sum,
           these factors have no talismanic qualities;
           courts must engage in a difficult and
           sensitive balancing process.    But, because
           we are dealing with a fundamental right of
           the accused, this process must be carried
           out with full recognition that the accused’s
           interest in a speedy trial is specifically
           affirmed in the Constitution.

State v. Spivey, 357 N.C. 114, 118, 579 S.E.2d 251, 255 (2003)

(quoting Barker, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed.

2d at 118-19).     We will now analyze the validity of Defendant’s

speedy trial claim using the four factor test described above.

                  2. Analysis of the Barker Factors

                              a. Length of Delay

    In determining the length of the delay for speedy trial

purposes, the relevant time period begins on the date upon which

the indictment is returned.            State v. Goins, __ N.C. App. __,

__, 754 S.E.2d 195, 198 (2014).               Thus, the relevant period for

purposes   of   this   case    began    on    8   May   2006   and   ended   when

Defendant’s case was called for trial on 25 June 2013.                       As a
                                            -12-
result, the period of delay for purposes of this case is eighty-

five months.

                                 b. Reason for Delay

      According to the decisional law governing the resolution of

speedy     trial       issues,   the   “constitutional            guarantee      does   not

outlaw good-faith delays which are reasonably necessary for the

State to prepare and present its case[.]”                        Washington, 192 N.C.

App. at 283, 665 S.E.2d at 804.                      For that reason, Defendant

bears the burden of “offering prima facie evidence showing that

the   delay      was    caused    by   the       neglect    or     willfulness     of   the

prosecution[.]”           Id.; see also Goins, __ N.C. App. at __, 754

S.E.2d at 198.          As a result, in the event that the defendant has

established that the delay that he or she experienced should be

attributed to the State, the State “must . . . offer evidence

fully explaining the reasons for delay and sufficient to rebut

the prima facie evidence.”                  Washington, 192 N.C. App. at 283,

665   S.E.2d      at    804.      We   do    not    believe        that   Defendant     has

established        that    the   lengthy      delay      revealed     by   the    present

record stemmed from negligence or willfulness on the part of the

State.

      As    an    initial      matter,      we    note     that,    when   a   defendant

consents to a delay in the course of litigation, he may not

claim that he suffered from that delay.                          State v. Grooms, 353
                                   -13-
N.C. 50, 63, 540 S.E.2d 713, 722 (2000), cert. denied, 534 U.S.

838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).                    As Defendant

concedes, his trial counsel requested a continuance on 22 June

2007 in order to obtain a DNA lab report2 and sought a second

continuance   on   18    January   2008   for   the    same    purpose.   In

addition, Defendant consented to a continuance sought by the

State on the same grounds on 20 August 2008.                  As a result, a

considerable portion of the lengthy delay that occurred in this

case resulted from actions taken or consented to by Defendant.

    The lab report was delivered to counsel for the parties on

21 August 2008.         Subsequently, the charges against Defendant

were scheduled for trial in October 2009.             Although both parties

were present and ready for trial, Detective Howard Reaves of the

Lumberton Police Department had failed to inform the prosecutor

that he was not available due to shoulder surgery.              Although the

    2
      As this Court has previously held, delays resulting from
the fact that the State Bureau of Investigation crime laboratory
has not completed testing evidence are not attributed to the
State for purposes of speedy trial analysis.     State v. Dorton,
172 N.C. App. 759, 764, 617 S.E.2d 97, 101 (2005), disc. review
denied, 360 N.C. 69, 623 S.E.2d 775 (2005). Although Defendant
vigorously argues that the length of time needed to obtain the
relevant laboratory report should be attributed to the State
given that some portion of the resulting delay stemmed from a
failure on the part of the investigating officers to notify the
prosecutor of the existence of the evidence that needed to be
tested and the State’s failure to make more strenuous efforts to
obtain completion of the required testing, he cites no authority
in support of this proposition, and we know of none other than
Dorton, which cuts against Defendant’s position.
                                       -14-
record does not contain any explanation for the State’s failure

to   have    engaged   in    more    effective     communications       with   the

Lumberton Police Department, we are unwilling to conclude that

the fact that the case against Defendant was not reached in

October 2009 because the lead detective had undergone shoulder

surgery amounts to neglect or willfulness on the part of the

State given that the effect of improved communication would have

likely been that Defendant’s case was not scheduled for trial at

all in October 2009.

       Finally, the record reflects that the delay between October

2009   and   the   date     upon   which    Defendant’s    case   was   actually

called   for   trial   in     June   2013     stemmed   from   congested   trial

calendars in the Robeson County Superior Court.                   At one point,

the prosecutor handling Defendant’s case was responsible for as

many as fifteen homicide cases.               As a result of the fact that

Defendant had been released on bond in January 2007, it was not

unreasonable for the prosecutor to give priority to homicide

cases and other cases involving defendants who were in pretrial

detention.      State v. Brown, 282 N.C. 117, 123-24, 191 S.E.2d

659, 664 (1972); State v. Hughes, 54 N.C. App. 117, 119, 282

S.E.2d 504, 506 (1981).              Although Defendant argues that the

State could have taken a number of steps, such as requesting the

assignments of additional judges or prosecutors, in order to
                                -15-
relieve the docket congestion that delayed Defendant’s trial, a

similar argument was not deemed persuasive in Spivey.          Simply

put, the fact that a considerable portion of the lengthy delay

at issue here resulted from docket congestion issues in Robeson

County indicates that the delay between the date upon which

Defendant was formally charged and the date upon which his case

was called for trial did not result from neglect or willfulness

on the part of the State.     Spivey, 357 N.C. at 117, 579 S.E.2d

at 256.    As a result, we are unable to conclude that the lengthy

delay at issue in this case should be attributed to the State

for speedy trial purposes.3

         c. Assertion of Defendant’s Right to a Speedy Trial

     Although Defendant was formally charged with first degree

kidnapping, attempted first degree murder, and assault with a

deadly weapon with the intent to kill inflicting serious injury

in May 2006, he did not assert his right to a speedy trial until

September 2012.    In other words, Defendant did not advance any

contention in reliance upon his federal and state constitutional

right to a speedy trial for six years after he had been formally

     3
      In addition, Defendant notes that his case was not called
for trial at some point during the period from 2009 until 2013
as a result of the fact that Mr. Franklin was out of the
country.   However, the record contains no indication that Mr.
Franklin’s absence was caused by the State or that the State had
any advance indication that Mr. Franklin would be unavailable on
a contemplated trial date.
                                         -16-
charged with assaulting, kidnapping, and attempting to murder

Mr. Franklin.      As the Supreme Court has noted, 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.       As    a   result,

Defendant’s     delay   in    asserting       his    right    to    a   speedy      trial

weighs against him in the ultimate balancing process.

                          d. Prejudice to Defendant

    In    order    to   obtain       relief     on   speedy     trial        grounds,    a

“defendant must show actual, substantial prejudice.”                              Spivey,

357 N.C. at 122, 579 S.E.2d at 257; see also Hughes, 54 N.C.

App. at 120, 282 S.E.2d at 506 (stating that “[c]ourts will not

presume   that     a    delay       in     prosecution       has    prejudiced         the

accused.”).     As we have previously acknowledged, “[t]he right of

a speedy trial is designed:              (i) to prevent oppressive pretrial

incarceration;     (ii)      to   minimize      anxiety      and    concern       of   the

accused; and (iii) to limit the possibility that the defense

will be impaired.”           State v. Lee, 218 N.C. App. 42, 54, 720

S.E.2d 884, 893, disc. review improvidently allowed, 366 N.C.

329, 734 S.E.2d 571 (2012) (quoting State v. Webster, 337 N.C.

674, 680-81, 447 S.E.2d 349, 352 (1994)).
                                          -17-
    In his brief, Defendant contends that he made the required

showing    of   prejudice        based    upon   the    fact     that      he   suffered

“oppressive”       pretrial      incarceration         and     experienced      anxiety

stemming from social stigma arising from his status as a person

charged with committing serious criminal offenses who had been

released on       bond.     In addition, Defendant contends that his

ability to mount a successful defense was prejudiced by the

lengthy delay that occurred in this case given that only one of

seven possible alibi witnesses was able to appear at his trial

due to illness, death, or disappearance.                     Having made bond on 27

January    2007,    Defendant       was    out   on    bail     for    a   substantial

portion of the period between the return of the indictments

charging    him    with     first    degree      kidnapping,       attempted       first

degree murder, and assault with a deadly weapon with the intent

to kill inflicting serious injury and the date upon which this

case was called for trial.               In addition, the record contains no

evidentiary       support     for        Defendant’s     claim        to    have   been

significantly stigmatized and to have suffered a great deal of

anxiety as a result of the substantial period of time during

which he was under bond.             Finally, Defendant failed to provide

any detailed description of the evidence that would have been

available from the potential alibi witnesses.                         In addressing a

similar    contention       to     the     effect     that      “potential      defense
                                      -18-
witnesses who were originally ready and willing to testify . . .

became   reticent,”   we   held       that   the    defendant’s    failure   to

explain the nature of the evidence that he was precluded from

presenting or the manner in which the delay between the date

upon which the defendant was formally charged and the date upon

which his case was called for trial caused his inability to

present testimony from these “reticent” witnesses meant that the

defendant had failed to show “actual, substantial prejudice.”

Goins, __, N.C. App. at __, 754 S.E.2d at 199.                    As a result,

Defendant has failed to establish the existence of the actual

prejudice needed to support an award of appellate relief on

speedy trial grounds.

                  e. Ultimate Balancing Analysis

    After analyzing each of the factors enumerated in Barker on

an individual basis, we are now required to make the ultimate

determination    of   whether         Defendant’s      federal     and   state

constitutional   right     to     a    speedy      trial   was    violated   by

considering all four factors in conjunction with each other.                 As

an initial step in that process, we note that a one-year trial

delay has been held to be “presumptively prejudicial.”                Webster,

337 N.C. at 678, 447 S.E.2d at 351 (quoting Doggett v. United

States, 505 U.S. 647, 652 n.1, 112 S. Ct. 2686, 2690 n.1, 120 L.

Ed. 2d 520, 528 n.1 (1992)).          In light of that fact, we find the
                                        -19-
eighty-five month delay at issue here exceedingly disturbing.

However, our analysis of each of the other Barker factors favors

the State.    Simply put, Defendant failed to assert his right to

a speedy trial for six years after having been charged with

committing the crimes for which he was convicted in this case.

In   addition,     Defendant       either      sought       or     consented         to    a

substantial    portion      of    the    delay       at    issue       in    this    case.

Moreover,    the   record   does       not    support     Defendant’s         contention

that the remaining delay resulted from neglect or willfulness on

the part of the State as compared to factors over which the

State did not have any reasonable degree of control.                            Finally,

Defendant    has   not   demonstrated         that    he    suffered         any    actual

prejudice as the result of the eighty-five month delay at issue

here.   As a result, consistent with the Supreme Court’s holding

in Spivey to the effect that the defendant was not entitled to

relief on speedy trial grounds despite the existence of a four

and a half year delay, Spivey, 357 N.C. at 123, 579 S.E.2d at

257, we hold that the trial court did not err by refusing to

dismiss the charges that had been lodged against Defendant in

this case on speedy trial grounds.

                            B. Jury Instructions

     Secondly,      Defendant          contends      that        the        trial    court

erroneously    instructed        the   jury    concerning        the    issue       of    his
                                             -20-
guilt of first degree kidnapping.                    More specifically, Defendant

contends that the trial court erroneously instructed the jury

that it could convict Defendant of first degree kidnapping if it

found beyond a reasonable doubt that he restrained or confined

Mr. Franklin for the purpose of facilitating his commission of

or flight after committing assault with a deadly weapon with the

intent to kill inflicting serious injury on the grounds that the

challenged      instruction          lacked    sufficient         evidentiary         support.

Defendant’s contention has merit.

       “No   person         shall    be   convicted    of       any    crime    but    by   the

unanimous verdict of a jury in open court.”                           N.C. Const. art. 1,

§ 24.      Similarly, N.C. Gen. Stat. § 15A-1237(b) provides that a

jury verdict “must be unanimous, and must be returned by the

jury in open court.”                Although a defendant’s failure to object

to    an   instructional            error    does,    as    a    general       proposition,

prohibit     the      defendant       from    obtaining      appellate         review    of   a

challenge       to     that     instructional        error       under     the    customary

prejudice standard applicable to issues that have been properly

preserved for appellate review, State v. Ashe, 314 N.C. 28, 39,

331    S.E.2d        652,     659    (1985),    “[w]here,         however,       the    error

violates [a] defendant’s right to a trial by a jury of twelve,

[a] defendant’s failure to object is not fatal to his right to

raise the question on appeal.”                 Id., 331 S.E.2d at 659; see also
                                          -21-
State v. Brewer, 171 N.C. App. 686, 691, 615 S.E.2d 360, 363

(2005)   (stating         that    “[v]iolations     of    constitutional      rights,

such as the right to a unanimous verdict . . . are not waived by

the failure to object at trial and may be raised for the first

time   on    appeal”)      (internal      citations      omitted),    disc.    review

denied, 360 N.C. 484, 632 S.E.2d 493 (2006).                     Although there is

no unanimity violation in the event that the “trial court merely

instructs the jury disjunctively as to various alternative acts

which will establish an element of the offense,” State v. Lyons,

330 N.C. 298, 303, 412 S.E.2d 308, 312 (1991), the situation is

very different in the event that the record does not contain

sufficient evidence to support a finding that one or the other

of the grounds for finding Defendant                     guilty of first degree

kidnapping listed in the trial court’s instructions had adequate

evidentiary support.

       In State v. Johnson, 183 N.C. App. 576, 646 S.E.2d 123

(2007), the trial court instructed the jury that it could find

the defendant guilty of second degree kidnapping if it found

that   he    acted       either    with   the    purpose    of   facilitating    his

commission of breaking or entering, or larceny, or to facilitate

his flight after committing those crimes.                     Id. at 581-82, 646

S.E.2d      at    127.       However,     the     undisputed      record   evidence

reflected        that,    when    defendant      restrained      or   confined    the
                                      -22-
victim,   he    had    already    committed    the    crimes    of   breaking    or

entering and larceny, Id. at 584, 646 S.E.2d at 128, a fact that

established that the defendant had not restrained or confined

the victim for the purpose of facilitating his commission of a

breaking or entering or a larceny.             Id., 646 S.E.2d at 128.           As

a   result,    given    the   fact   that     the    record    did   not   contain

sufficient evidence to support both of the theories enumerated

in the trial court’s instructions, we awarded the defendant a

new trial.     Id. at 585, 646 S.E.2d at 128.

       The same situation that existed in Johnson is present here.

As Defendant contends, all of the record evidence tends to show

that    Defendant      feloniously     assaulted       Mr.     Franklin     before

Defendant removed Mr. Franklin from the Redwood Inn.                   According

to Mr. Franklin:

              [Defendant] just reached down and broke the
              table leg off, and with the room being in my
              name, I said, ho, ho, ho. I jumped up, and
              that’s the last thing I remember until I was
              taken to the river, and he took a rock and
              busted the window out.

Similarly,      Mr.    Bass      testified    that     Defendant      drove     Mr.

Franklin’s van to the Lumber River, opened the door to display

Mr. Franklin “laying out across the seat in the back behind the

driver’s seat,” and told him about beating Mr. Franklin with a

table leg at the Redwood Inn.           Although the State contends that

the assault that Defendant committed against Mr. Franklin had
                                       -23-
not ended by the time of this conversation in light of Mr. Bass’

testimony that Defendant asked “if [he thought] he should kill

[Mr. Franklin] or something,” nothing about this evidence tends

to show that Defendant assaulted Mr. Franklin at any time after

their departure from the Redwood Inn.               Similarly, the fact that

Mr. Franklin did not remember what occurred beside the Lumber

River, that Mr. Franklin’s blood was found in the van, and that

Defendant broke out the van’s window with a rock and caused

broken glass to enter Defendant’s wounds does not establish that

Defendant engaged in any assaultive behavior beside the Lumber

River or at any time after Defendant and Mr. Franklin left the

Redwood Inn.         As a result of the fact that the trial court in

this       case   instructed   the   jury   with   respect   to   the   issue   of

Defendant’s guilt of first degree kidnapping on the basis of two

theories, “one which [was] not supported by the evidence and one

which [was],” and the fact that “it cannot be discerned from the

record upon which theory or theories the jury relied in arriving

at its verdict,” Johnson, 183 N.C. App. at 584, 646 S.E.2d at

128, Defendant, like the defendant in Johnson, is entitled to a

new trial in the case in which he was convicted of first degree

kidnapping.4

       4
      Although the State contends that we should refrain from
following Johnson on the grounds that it is inconsistent with
prior decisions of the Supreme Court, the State has not cited
                                      -24-
                           III. Conclusion

    Thus, for the reasons set forth above, we conclude that,

while   Defendant’s   speedy   trial     claim   lacks    merit,    the   trial

court erred by allowing the jury to find Defendant guilty of

first   degree   kidnapping      on     the   basis      of    a   disjunctive

instruction   concerning   the   purpose      for   which     Defendant   acted

that lacked adequate evidentiary support.                As a result,       the

trial court’s judgments in the cases in which Defendant was

convicted of attempted first degree murder and assault with a

deadly weapon with the intent to kill inflicting serious injury

should, and hereby do, remain undisturbed and Defendant should,

and hereby does, receive a new trial in the case in which he was

convicted of first degree kidnapping.

    NO ERROR IN PART; NEW TRIAL IN PART.

    Judges ROBERT N. HUNTER, JR., and DAVIS concur.

    Report per Rule 30(e).




any decisions limiting Johnson’s precedential effect to the
specific factual situation at issue in Johnson and we have not
identified any such decision in the course of our own research.
As a result, we conclude that we are bound by Johnson despite
the State’s contention to the contrary.
