An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-1276

NORTH CAROLINA COURT OF APPEALS

Filed: 5 August 2003

STATE OF NORTH CAROLINA

v .                         Forsyth County
                            No. 99 CRS 036198
BRANDON NEIL THOMAS

    Appeal by defendant from judgment dated 18 August 2000 by Judge Richard L. Doughton in Superior Court, Forsyth County. Heard in the Court of Appeals 12 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General R. Marcus Lodge, for the State.

    Maitri "Mike" Klinkosum, for defendant-appellant.

    McGEE, Judge.

    Brandon Neil Thomas (defendant) was indicted for second-degree rape and second-degree sexual offense on 29 November 1999. The evidence at trial tended to show the following.
     The prosecuting witness testified that she met defendant on 29 April 1999 at Bi-Lo, where defendant worked as a stocker and she worked as a cashier. The prosecuting witness testified defendant came to her apartment on the afternoon of 30 April 1999 and helped her set up bedroom furniture. Defendant and the prosecuting witness kissed some, but defendant left when the prosecuting witness told him she was not interested in a sexual relationship.     Defendant and Carlos Cordova, another Bi-Lo employee, later returned to the prosecuting witness' apartment and brought somebeer. The three played a drinking game and the prosecuting witness became drowsy and was carried into her bedroom by defendant.
    The prosecuting witness testified that defendant came into her bedroom and climbed on top of her. Defendant kissed her and inserted his finger into her vagina. She tried to move away and told him to stop. The prosecuting witness testified that she began to feel weak and told defendant that she needed to go to the bathroom. When she stood up, she fell over and defendant placed her on the toilet and pulled her pants and underwear down. Defendant turned on the water in the bathtub, removed his clothes, removed the rest of the prosecuting witness' clothes, and placed her in the bathtub.
    The prosecuting witness testified that she fell to the floor of the bathtub and defendant pinned her arms and legs with his body and penetrated her vagina with his penis. The prosecuting witness cried and screamed and told defendant to stop before she blacked out. The prosecuting witness stated that defendant tried to pick her up from the tub but dropped her and they both fell. Mr. Cordova entered the bathroom, threw a towel on the prosecuting witness, picked her up from the tub, and then threw her on the bed. After becoming more alert, the prosecuting witness went back to the bathroom and defendant and Mr. Cordova went to check on her several times. After defendant and Mr. Cordova left, the prosecuting witness called a friend who came to her house and called an ambulance.
    Mr. Cordova testified for the defendant and said that after heand defendant had returned from purchasing beer, the prosecuting witness said she felt sick and went to the bedroom, with defendant following her. Mr. Cordova stated that he sat on the couch drinking and listening to the radio and began to hear "moaning stuff." He turned down the radio and listened for a few minutes and then turned the radio back up because he thought "everything was all right." Mr. Cordova stated that after about twenty minutes, he heard the shower come on. Defendant came out about five minutes later and said he needed help. Mr. Cordova stated that he never heard anyone say "no," "stop," or ask for help. He believed defendant and the prosecuting witness were having sex on the bed because he heard the bed squeaking.
    Defendant testified that he and the prosecuting witness were "all over each other" when they went into the bedroom. He did not get the impression she did not want to be touched or kissed because they had been doing it all day. Defendant stated that the prosecuting witness helped him get her clothes off and then they had sexual intercourse on the bed. He testified that the prosecuting witness asked him to spend the night, but she became drowsy, "real messed up," and angry after he refused. He stated that he helped her to the shower to wake her up and then he and Mr. Cordova helped her back to the bed. Defendant stated that the prosecuting witness was "pretty mad" when he and Mr. Cordova left.     At the close of the evidence and before the jury instruction conference, the trial court engaged in the following exchange with the jury:        COURT:    Members of the Jury, can all of you be back at 9:30 in the morning? Anyone who can't?

        JUROR:    I have vacation planned.

        COURT:    Can you stay here tonight then as long as it takes?

        JUROR:    Yeah.

        COURT:    You rather stay here tonight?

        JUROR:    I don't want to inconvenience anyone else.

        COURT:    Is that agreeable with everybody else?

        (Jurors nodding heads).

    Following closing arguments and motions, the trial court instructed the jury on the charges and the jury began its deliberations at 6:35 p.m. The jury sent a note to the trial court requesting to see written testimony of a witness at 7:25 p.m. The jury sent a second note requesting a legal definition of reasonable doubt at 8:00 p.m. At 8:45 p.m., the jury sent the trial court a note stating: "We are stuck on an 8 to 4 vote. We all stand firm in our decision." The trial court suggested to counsel that the jury be given the choice of continuing deliberations that evening or returning the next morning, but both the prosecutor and defense counsel stated that they preferred the trial court not give the jury a choice. The trial court brought the jury back into the courtroom and read Criminal Pattern Jury Instruction 101.4, known as the Allen charge, stating:
        Members of the Jury, I have received a note from you that informs me that you have been _ you have so far been unable to agree upon averdict. The Court wants to emphasize the fact that it's your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women, and to reconcile your differences if you can without the surrender of conscientious convictions. But no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

        I'm going _ I'll let you resume your deliberations and see if you can reach a verdict.

    Defendant did not object to the trial court's instruction to the jury. The jury continued deliberations at 9:08 p.m. The jury sent another note to the trial court at 9:15 p.m. asking to see several of the written exhibits. After continuing deliberations, the jury reached a verdict at 10:00 p.m.     
    The jury convicted defendant of second-degree rape and acquitted defendant of second-degree sexual offense. The trial court sentenced defendant to a minimum of 105 months and a maximum of 135 months in prison on 18 August 2000. Defendant appeals.
    Defendant argues that the trial court erred in giving the Allen charge after the jury indicated it could not reach a decision. We first note that defendant failed to object to the trial court giving an Allen instruction to the jury when the jury indicated that it was deadlocked. "A party may not assign as error any portion of the jury charge or omission therefrom unless he objects thereto before the jury retires to consider its verdict . . . ." N.C.R. App. P. 10(b)(2). Our review of defendant's argument is therefore limited to whether the trialcourt committed plain error. State v. Bussey, 321 N.C. 92, 95, 361 S.E.2d 564, 566 (1987); State v. Williams, 315 N.C. 310, 328, 338 S.E.2d 75, 86 (1986).
        Plain error is an error which was "so fundamental as to amount to a miscarriage of justice or which probably resulted in the jury reaching a different verdict than it otherwise would have reached." To prevail under a plain error analysis, a defendant must establish not only that the trial court committed error, but that absent the error, the jury probably would have reached a different result.

State v. Jones, 137 N.C. App. 221, 226, 527 S.E.2d 700, 704 (citations omitted), disc. review denied, 352 N.C. 153, 544 S.E.2d 235 (2000). Our Supreme Court has stated that
        "[t]he plain error rule . . . is always to be applied cautiously and only in the exceptional case where, after reviewing the entire record, it can be said the claimed error is a 'fundamental error, something so basic, so prejudicial, so lacking in its elements that justice cannot have been done,' or 'where [the error] is grave error which amounts to a denial of a fundamental right of the accused,' or the error has '"resulted in a miscarriage of justice or in the denial to appellant of a fair trial."'"

State v. Steen, 352 N.C. 227, 255, 536 S.E.2d 1, 18 (2000) (emphasis omitted) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)), cert. denied, Steen v. North Carolina, 531 U.S. 1167, 148 L. Ed. 2d 997 (2001).
    N.C. Gen. Stat. § 15A-1235 (2001) provides guidelines for jury deliberations and instructing deadlocked juries. The statute states:
        (b)    Before the jury retires for deliberation, the judge may give an instruction which informs the jury that:
                    (1)    Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

            (2)    Each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

            (3)    In the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

            (4)    No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

        (c)    If it appears to the judge that the jury has been unable to agree, the judge may require the jury to continue its deliberations and may give or repeat the instructions provided in subsections (a) and (b). The judge may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

        (d)    If it appears that there is no reasonable possibility of agreement, the judge may declare a mistrial and discharge the jury.

N.C.G.S. § 15A-1235(b)-(d).
    Our Supreme Court has held that N.C.G.S. § 15A-1235(c) is the "proper reference for standards applicable to charges which may be given a jury that is apparently unable to agree upon a verdict." State v. Easterling, 300 N.C. 594, 608, 268 S.E.2d 800, 809 (1980). The language of the statute is permissive and the decision whether to give the instruction is within the trial court's discretion. Williams, 315 N.C. at 326-27, 338 S.E.2d at 85. However, when the trial court concludes that the jury may be deadlocked and gives the instructions in N.C.G.S. § 15A-1235(b), the trial court must give the substance of all its subsections. Id.; see State v. Lyons, 343 N.C. 1, 21, 468 S.E.2d 204, 213-14, cert. denied, Lyons v. North Carolina, 519 U.S. 894, 136 L. Ed. 2d 167 (1996).
    Defendant contends the trial court erred in giving the Allen charge because it failed to give all of the instructions under N.C.G.S. § 15A-1235(b). However, our Supreme Court has stated that the trial court is not required to read the express language of the statute verbatim as long as it gives the substance of the four instructions. State v. Fernandez, 346 N.C. 1, 23, 484 S.E.2d 350, 364 (1997). Additionally, a failure to instruct on all the subsections of the statute does not automatically entitle defendant to a new trial because "'every variance from the procedures set forth in the statute does not require the granting of a new trial.'" Williams, 315 N.C. at 327-28, 338 S.E.2d at 86 (quoting State v. Peek, 313 N.C. 266, 271, 328 S.E.2d 249, 253 (1985)).
    A review of the entire record shows that the trial court did not commit plain error in charging the jury under N.C.G.S. § 15A- 1235. While the trial court did not give all four subsections set out in N.C.G.S. § 15A-1235(b) verbatim, the trial court's charge gave the substance of the four subsections in the statute. In the instruction, the trial court reminded the jury of its duty to attempt to reach a verdict. It encouraged them to be reasonable in their deliberations, but admonished them not to surrender theirhonest convictions due to the opinions of their fellow jurors or for the purpose of reaching a verdict. This instruction encompassed the substance of the statutory requirements and safeguarded defendant's rights as the jury reached its verdict. Defendant has failed to demonstrate that the jury would have probably reached a different verdict had the trial court not given the N.C.G.S. § 15A-1235 instruction or alternatively given the instruction verbatim. Williams, 315 N.C. at 328, 338 S.E.2d at 86. We hold that the trial court did not commit plain error in instructing the jury under N.C.G.S. § 15A-1235 or in the form of the instruction given. This assignment of error is overruled.
    Defendant also contends that the statements of the trial court, the circumstances of the jury's deliberations, and instructions to the jury under N.C.G.S. § 15A-1235 demonstrate coercion, requiring a new trial. We note that defendant did not object to the trial court's inquiry of the jury regarding whether they would rather deliberate into the night or return the next morning. Accordingly, we review this assignment of error under a plain error standard. Bussey, 321 N.C. at 95, 361 S.E.2d at 566. This Court must consider the trial court's actions in light of the totality of the circumstances when determining whether a jury's verdict was coerced. State v. Patterson, 332 N.C. 409, 415-16, 420 S.E.2d 98, 101 (1992); State v. Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988). Article I, Section 24 of the North Carolina Constitution prohibits a trial court from forcing a jury to return a verdict. See Patterson, 332 N.C. at 415, 420 S.E.2d at101. N.C.G.S. § 15A-1235(c) prohibits a trial court from requiring or threatening to require a jury to deliberate for an unreasonable length of time or unreasonable intervals.
        [A] Defendant is entitled to a new trial if the circumstances surrounding jury deliberations "might reasonably be construed by [a] member of the jury unwilling to find the defendant guilty as charged as coercive, suggesting to him that he should surrender his well-founded convictions conscientiously held or his own free will and judgment in deference to the views of the majority and concur in what is really a majority verdict rather than a unanimous verdict."

State v. Dexter, 151 N.C. App. 430, 433, 566 S.E.2d 493, 496 (2002) (quoting State v. Roberts, 270 N.C. 449, 451, 154 S.E.2d 536, 538 (1967)).
    The trial transcript shows that the trial court asked a juror if he was prepared "to stay here tonight as long as it takes" and asked the entire jury if they were agreeable to deliberating into the night. The trial transcript shows the jury began its deliberations at 6:35 p.m. The jury sent two notes to the trial court requesting written testimony and additional information before informing the trial court that they could not move beyond an eight to four vote. The jury's note did not indicate whether the majority was in favor of acquittal or conviction. In response to the deadlock, the trial court instructed the jury pursuant to N.C.G.S. § 15A-1235 without objection from defendant or the State. The trial transcript shows that the trial court offered to give jurors the choice of continuing deliberations that evening or resuming the following morning, but counsel requested the jurorsnot be given the choice. Following the N.C.G.S. § 15A-1235 charge, the jury deliberated for fifty minutes and requested to see additional written evidence before reaching a verdict.
    Defendant cites State v. McEntire, 71 N.C. App. 720, 323 S.E.2d 439 (1984) and State v. Dexter, 151 N.C. App. 430, 566 S.E.2d 493 (2002) in support of his argument. In McEntire, the trial court asked the jury foreman to give him the division of the jury after five hours of deliberations. McEntire, 71 N.C. App. at 724, 323 S.E.2d at 442. The foreman stated the ranges of votes on each charge and indicated that the jury would probably be unable to reach a unanimous verdict. Id. The trial court instructed the jury to continue deliberating without any further instructions and did not remind jurors that they must decide the case for themselves and not surrender their convictions for the purpose of returning a verdict. Id. at 724-25, 323 S.E.2d at 442. The jury subsequently returned verdicts twenty-four minutes into their resumed deliberations. Id. In holding that the trial court's comments improperly influenced the jury, we noted that the trial court should have given the N.C.G.S. § 15A-1235(b) instruction since it chose not to declare a mistrial. Id. at 725, 323 S.E.2d at 442. We also noted that the jury returned inconsistent verdicts based on the facts and took only an additional twenty-four minutes to reach the verdicts after over five previous hours of deliberations. Id.
    The facts in McEntire are distinguishable from the facts in the present case. The jury in this case had only deliberated approximately two hours before indicating they were deadlocked. The trial court gave an appropriate instruction pursuant to N.C.G.S. § 15A-1235 in ordering the jury to continue deliberations and the jury continued deliberations for fifty minutes. The jury asked to see additional exhibits, which evidenced continued consideration of the facts of the case, rather than a resumption of deliberations for the sake of rendering a verdict. Additionally, the verdicts were not mutually exclusive and the jury's decision to convict defendant of second-degree rape and acquit on second-degree sexual assault was within the province of the jury and not inconsistent under the facts of this case.
    In Dexter, the jury deliberated for three days and the trial court ignored two notes regarding a juror's request to attend his wife's surgery the following day and only instructed the jury to continue deliberating. Dexter, 151 N.C. App. at 433-34, 566 S.E.2d at 496. The jury also sent three notes to the trial court stating that it was unable to reach a unanimous verdict and was not given an N.C.G.S. § 15A-1235 instruction after the final note. Id. In granting a new trial for defendant, we stated that "the jury could reasonably have concluded that it was required to deliberate until it did in fact reach a verdict." Id. at 434, 566 S.E.2d at 496. Additionally, we stated that the juror may have felt pressure to reach a verdict by the end of the day due to the trial court's failure to address the individual juror's concerns in the presence of the entire jury. Id.
    
The facts in Dexter are also distinguishable from the present case. In the present case, the trial court addressed the juror'sconcern about his pending vacation in the presence of the entire jury before deliberations began. The entire jury was given choices of when to begin deliberations and voluntarily chose to deliberate into the evening. Upon learning that the jury was deadlocked, the trial court instructed the jury to continue deliberating in an attempt to reach a verdict and gave an N.C.G.S. § 15A-1235 charge without objection from either side. The trial court did not express displeasure with the jury's initial inability to reach a unanimous verdict and did nothing to indicate that the jury would be forced to deliberate for an unreasonable time period to reach a verdict. The jurors indicated only once that they were deadlocked and the trial court gave the appropriate N.C.G.S. § 15A-1235 instruction as a response, safeguarding defendant by admonishing the jurors not to surrender their individual convictions while encouraging them to reach a verdict.
    In considering the totality of the circumstances, we hold that the jury's verdict was not coerced or the result of compromise. No jury member could have reasonably construed from the circumstances surrounding the deliberations that the trial court suggested that jurors should surrender their convictions in favor of a compromise verdict. The trial court never intimated that the jury was required to reach a verdict or that it would be forced to deliberate until it had reached a verdict. While defendant argues the trial court's use of the words "as long as it takes" indicated the jurors would be forced to stay into the night until a verdict was reached, no reasonable juror, in light of the context, couldinterpret this as requiring them to reach a unanimous verdict before they could go home. The trial court's inquiry simply ascertained their willingness to stay into the evening to deliberate.
    Additionally, this exchange between the trial court and the jury occurred prior to closing arguments, the charge conference, and the instruction of the jury and was not made in conjunction with the N.C.G.S. § 15A-1235 charge. The trial court did not order the jury to reach a verdict, but simply instructed them to attempt to reach a verdict. The trial transcript shows that several hours elapsed between this original inquiry and the giving of the N.C.G.S. § 15A-1235 charge; and the jury continued to deliberate for an additional fifty minutes after the N.C.G.S. § 15A-1235 charge was given. Considering the time between the trial court's inquiry and the N.C.G.S. § 15A-1235 charge, the totality of the circumstances does not show that the trial court coerced the jury into reaching a verdict.
    In light of the total circumstances at trial, we hold that the jury's verdict was not the result of coercion from the trial court. Defendant has failed to demonstrate that the jury would have probably reached a different verdict had the trial court not made the initial inquiry of the jury, had it refrained from giving an instruction under N.C.G.S. § 15A-1235, or had it not instructed the jury to continue deliberating. We find no plain error. This assignment of error is overruled.
    Defendant finally argues that he was denied effectiveassistance of counsel in violation of the United States and North Carolina Constitutions. "When a defendant attacks his conviction on the basis that counsel was ineffective, he must show that his counsel's conduct fell below an objective standard of reasonableness." State v. Braswell, 312 N.C. 553, 561-62, 324 S.E.2d 241, 248 (1985).
        First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864 (1984).
    Defendant argues that he was denied effective assistance of counsel because his trial attorney failed to object to the N.C.G.S. § 15A-1235 charge to the jury and failed to move for a mistrial after the jury said it was deadlocked. However, defendant has failed to specifically demonstrate how defense counsel's performance fell below a standard of reasonableness and deprived him of a fair trial. As we previously stated, the N.C.G.S. § 15A- 1235 charge was properly given once the jury was deadlocked and it operated to safeguard defendant's rights by admonishing jurors to not surrender their conscientious convictions. Defendant's mere speculation of alternative outcomes had defendant objected to the N.C.G.S. § 15A-1235 charge and moved for a mistrial is insufficientto demonstrate that he was prejudiced by defense counsel's performance. This assignment of error is without merit.
    We have reviewed defendant's remaining arguments and find them to be without merit.
    No error.
    Judges BRYANT and GEER concur.
    Report per Rule 30(e).

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