STATE OF NORTH CAROLINA v. GARY MAURICE WALTERS

On the evening of 17 August 2005, Paul Franklin began a two-day period of

repeatedly buying and using cocaine, during which he was introduced to, and

purchased cocaine from, defendant. After Franklin ran out of money while staying at

the Redwood Inn in Lumberton, North Carolina, he allowed defendant to use his

vehicle, a gray Ford Windstar van, in exchange for more cocaine. This arrangement

continued through the next day, with defendant bringing Franklin cocaine every few

hours in exchange for the continued use of the van.

Early in the morning of 19 August 2005, at approximately 3:30 a.m., Franklin’s

paycheck was deposited into his bank account, and defendant drove him in the van

to an ATM to withdraw money. After Franklin made the withdrawal, defendant

offered to bring Franklin “a third of cocaine” in exchange for the one hundred dollars

Franklin had available to spend. However, when defendant arrived back at the

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Redwood Inn with the cocaine, Franklin believed it to be worth less than the full

amount he had offered to pay; he offered defendant seventy-five dollars instead. In

response, defendant reached down and broke off the leg of a table in the hotel room,

then used the table leg to beat Franklin.

A short time later, at approximately 5:30 or 6:00 a.m., defendant arrived at the

home of Christopher Bass and Shelly Scott. At defendant’s request, Bass used Scott’s

Honda Civic to follow defendant while defendant drove Franklin’s Windstar. They

eventually parked near a river, and defendant told Bass that he had a man in the

van. Defendant opened the door to show him Franklin in the back seat. According

to Bass, Franklin’s face “was mangled and beat up, and it sounded like he was

breathing heavy.” Defendant told Bass that the injuries were the product of a “tussle”

stemming from “a drug deal gone wrong” at the Redwood Inn. Bass answered in the

negative when defendant asked him if he should kill Franklin. Defendant left the

van at the scene and Bass used the Civic to drive defendant back to defendant’s

mother’s house.

The injuries Franklin endured were severe. As a result of the beating, every

bone in Franklin’s face was broken; he suffered optic nerve damage, which caused

him to have blind spots; and his eye socket was so badly damaged that doctors could

not correctly realign his eyes, which resulted in double vision. He suffered such

extensive facial scarring that he “went a year with no nose.” When doctors attempted

reconstructive surgery, an antibiotic-resistant staph infection prevented them from

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completing it successfully. As a result of the damage to his vision, Franklin could no

longer continue his employment as a truck driver.

On 8 May 2006, defendant was indicted in Robeson County for first-degree

kidnapping, attempted first-degree murder, and assault with a deadly weapon with

intent to kill inflicting serious injury. The charges against defendant were called for

trial on 24 June 2013, and a jury was selected and impaneled the next day. The State

presented evidence from 26 June through 28 June; defendant presented evidence on

28 June. Also on 28 June 2013, the trial court instructed the jury regarding the

offenses with which defendant had been charged: attempted first-degree murder,

assault with a deadly weapon with intent to kill inflicting serious injury, and first

degree kidnapping. Regarding the elements of first-degree kidnapping, the trial court

instructed as follows:

The defendant has been charged with first degree kidnapping. For you to find the defendant guilty of this offense, the State must prove five things beyond a reasonable doubt: First, that the defendant unlawfully removed a person from one place to another; second, that the person did not consent; third, that the defendant removed that person for the purpose of facilitating his commission of or flight after committing the felony of assault with a deadly weapon with intent to kill inflicting serious injury; fourth, that this removal was a separate, complete act, independent of and apart from the assault; and fifth, that the person was not released by the defendant in a safe place or had been seriously injured.



Later that day, the jury returned verdicts convicting defendant of all three offenses.

Defendant entered a written notice of appeal to the Court of Appeals on 5 July 2013.

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At the Court of Appeals, defendant argued, inter alia, that he had been denied

his right to a unanimous jury verdict regarding the first-degree kidnapping charge;

defendant took particular issue with the instruction allowing the jury to convict him

of first-degree kidnapping if it found beyond a reasonable doubt that he had

committed the kidnapping “for the purpose of facilitating the commission of or flight

following the commission of a felony.” Applying its precedent in State v. Johnson, 183

N.C. App. 576, 646 S.E.2d 123 (2007), the Court of Appeals agreed, concluding that

the challenged instruction would have allowed one or more jurors to convict defendant

based on a theory not supported by the evidence, namely, that defendant had

committed the kidnapping to facilitate the assault of Franklin rather than a

subsequent escape. See Walters, 2014 WL 4292074, at *8-9. The Court of Appeals

therefore ordered a new trial on the charged offense of first-degree kidnapping. Id.

at *9. The State filed a petition for discretionary review, which we allowed on 5

November 2015.

II. ANALYSIS

Defendant contends to this Court, as he did to the Court of Appeals, that the

trial court’s “disjunctive” instruction to the jury regarding the charge of first-degree

kidnapping allowed the jury to convict him through a non-unanimous verdict.

Defendant argues in essence that the relevant instruction—that to convict, the jury

must find that defendant “removed [Franklin] for the purpose of facilitating the

commission of or flight following the commission of a felony” (emphases added)—

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allowed each individual juror to vote to convict on either basis. As a result, this

argument continues, some jurors obeying this instruction may have found as fact that

defendant kidnapped Franklin “to facilitate the commission of” the assault or

attempted murder, but not the flight afterward, while others may have found that

defendant kidnapped Franklin “to facilitate . . . flight following the commission of”

the assault or attempted murder, but not the assault or attempted murder itself. In

that event, there would be no unanimously agreed-upon basis for the conviction, in

seeming violation of the unanimity requirement.

Because this argument has previously been considered and rejected by this

Court, we now reverse in part the decision of the Court of Appeals. See State v. Bell,

359 N.C. 1, 29-30, 603 S.E.2d 93, 112-13 (2004), cert. denied, 544 U.S. 1052 (2005).

Both the North Carolina Constitution and the North Carolina General Statutes

protect the right of the accused to be convicted only by a unanimous jury in open

court. See N.C. Const. art. I, § 24 (“No person shall be convicted of any crime but by

the unanimous verdict of a jury in open court . . . .”);1 N.C.G.S. § 15A-1237(b) (2015)

(requiring that a jury verdict “be unanimous, and . . . be returned by the jury in open

court”). But it does not follow from these constitutional and statutory guarantees

that every disjunctive jury instruction violates one or both of those guarantees.

Rather, as we explained in Bell, which the Court of Appeals did not mention even

though that case also concerned a jury instruction for first-degree kidnapping, our

case law has long embraced a distinction between unconstitutionally vague

instructions that render unclear the offense for which the defendant is being

convicted and instructions which instead permissibly state that more than one

specific act can establish an element of a criminal offense. See 359 N.C. at 29-30, 603

S.E.2d at 112-13. As we explained in Bell:

Two lines of cases have developed regarding the use of disjunctive jury instructions. State v. Diaz [317 N.C. 545, 346 S.E.2d 488 (1986), and its progeny] stand[ ] for the proposition that “a disjunctive instruction, which allows the jury to find a defendant guilty if he commits either of two underlying acts, either of which is in itself a separate offense, is fatally ambiguous because it is impossible to determine whether the jury unanimously found that the defendant committed one particular offense.” In such cases, the focus is on the conduct of the defendant.



In contrast, this Court has recognized a second line of cases [stemming from State v. Hartness, 326 N.C. 561, 391 S.E.2d 177 (1990), ] standing for the proposition that “if the trial court merely instructs the jury disjunctively as to various alternative acts which will establish an element of the offense, the requirement of unanimity is satisfied.” In this type of case, the focus is on the intent or purpose of the defendant instead of his conduct.



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Id. at 29-30, 603 S.E.2d at 112-13 (emphases in original) (internal citations omitted)

(quoting State v. Lyons, 330 N.C. 298, 302-03, 412 S.E.2d 308, 312 (1991)).

This case falls within the second category of cases described in Bell. There, as

here, the defendant was charged with first-degree kidnapping; there, as here, the

trial court instructed the jury that it could convict the defendant only if it found

beyond a reasonable doubt that the defendant had committed one or more specific

acts, any of which could establish an essential element of the offense; and there, as

here, the defendant argued that the trial court’s “disjunctive” instruction violated his

right under the North Carolina Constitution to be convicted only through a

unanimous jury verdict. In that virtually identical context, this Court held that the

trial court’s disjunctive instruction did not deprive the defendant of this right. See

id. at 29, 603 S.E.2d at 112 (“The trial court instructed the jury as to first-degree

kidnapping, in accord with the pattern jury instructions . . . . Defendant contends

that the trial court’s disjunctive instructions were fatally ambiguous because the jury

could have convicted defendant without a unanimous decision that defendant

confined, restrained, or removed the victim for the purpose of committing a specific

crime. We disagree.”). We then went on to explain:

It is not necessary for the State to prove, nor for the jury to find, that a defendant committed a particular act other than that of confining, restraining, or removing the victim. Beyond that, a defendant’s intent or purpose is the focus, thus placing the case sub judice squarely within the Hartness line of cases. The trial court’s instructions and the verdict form were proper.