An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1316
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Filed: 1 July 2003


     v .                     Guilford County
                            Nos. 01 CRS 24517, 24518,
                            02 CRS 23306

    Appeal by defendant from judgments entered 28 March 2002 by Judge Ronald E. Spivey in Guilford County Superior Court. Heard in the Court of Appeals 11 June 2003.

    Attorney General Roy Cooper, by Special Deputy Attorney General Isaac T. Avery, III, for the State.

    Hall & Hall, P.C., by Susan P. Hall, for defendant-appellant.

    MARTIN, Judge.

    Defendant appeals from sentences entered upon judgments for habitual impaired driving and being an habitual felon. The evidence presented at trial tended to show that on 7 March 2001 defendant was stopped on Rock Creek Dairy Road in Guilford County by Deputy Sheriff Randal Shepard. Shepard testified that defendant “had bloodshot and glassy eyes . . . his movements were sluggish” and his speech was “slow, confused, thick-tongued, slurred and mumbled.” Shepard also “noticed a strong odor of alcohol.” Shepard transported defendant to the Guilford County jail, advised him of his rights and administered an Intoxilyzer test, which reported a breath alcohol concentration of 0.19. On 18 February 2002 defendant was indicted for driving while license revoked,driving while impaired and habitual impaired driving, and being an habitual felon. The charge of driving while license revoked was dismissed. A jury found defendant guilty of driving while impaired, habitual impaired driving, and being an habitual felon. Defendant was sentenced to a minimum term of 121 months and a maximum term of 155 months for habitual impaired driving and being an habitual felon and 12 months for driving while impaired.


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    Defendant challenges the sentences imposed upon his convictions by seven assignments of error. Pursuant to Rule 28(a) of North Carolina Rules of Appellate Procedure, defendant has abandoned his second and seventh assignments of error, so we need not address them here. N.C. R. App. P. 28(a) (2003). His remaining arguments are (1) the habitual driving while impaired indictment does not allege his status as an habitual felon and so cannot support the conviction; (2) the habitual driving while impaired indictment fails to meet statutory requirements; (3) defendant was not properly arraigned on the charge of habitual driving while impaired; (4) the trial court erred in not declaring a mistrial when the jury reported they could not reach a verdict; (5) defendant cannot be sentenced for driving while impaired as well as habitual driving while impaired. After careful consideration, we reject his first four arguments, but remand the case to the trial court to arrest judgment entered upon defendant's conviction of driving while impaired.
    Defendant contends that the habitual impaired drivingindictment fails to support his conviction as an habitual felon because it did not allege his habitual felon status. “It is well established precedent that the principal felony indictment need not refer to the defendant's alleged status as an habitual offender” provided the defendant had notice of the State's intent to prosecute him as an habitual felon as well. State v. Sanders, 95 N.C. App. 494, 504, 383 S.E.2d 409, 416, disc. review denied, 325 N.C. 712, 388 S.E.2d 470 (1989). There were two separate indictments here which adequately informed defendant of the State's prosecution. Therefore, we overrule this assignment of error.
    Defendant next assigns error to the trial court's failure to strike the habitual impaired driving indictment because it did not meet statutory requirements. Defendant improperly argues that this failure constitutes plain error. The plain error doctrine is used in exceptional cases when a question “was not preserved by objection as noted at trial.” N.C. R. App. P. 10(c)(4) (2003). However, the analysis “applies only to jury instructions and evidentiary matters,” State v. Wiley, 355 N.C. 592, 615, 565 S.E.2d 22, 39-40 (2002), cert. denied, ___ U.S. ___, 154 L. Ed. 2d 795 (2003), and it is a defendant's burden to show that but for the error a different result would have been reached or that a miscarriage of justice or denial of a fair trial resulted. State v. Anderson, 355 N.C. 136, 558 S.E.2d 87 (2002). Plain error review is not available to defendant upon this issue.
    Relying on State v. Jackson, 306 N.C. 642, 652, 295 S.E.2d 383, 389 (1982), defendant argues a “separate document” should setforth the information about prior convictions required when a lower grade offense becomes an element of a higher grade offense. Neither Jackson, nor the relevant statute, however, requires separate indictments. G.S. . 15A-928 allows the prosecutor to issue either a special indictment containing the information or incorporate it into “the principal indictment as a separate count.” N.C. Gen. Stat. § 15A-928(b) (2003). In the present case, the first count states the elements of impaired driving under G.S. § 20-138.1 and the second count lists three separate convictions, as delineated by § 15A-928(b). See State v. Lobohe, 143 N.C. App. 555, 558-59, 547 S.E.2d 107, 109-110 (2001) (explaining the format for an indictment charging habitual driving while impaired). The trial court was not required to strike the habitual driving while impaired indictment, and defendant's assignment of error is overruled.
    Defendant maintains that he was not properly arraigned on the charge of habitual driving while impaired. G.S. § 15A-928(c) requires that after commencement of the trial, but before the close of the State's evidence, a defendant must be arraigned concerning the special indictment, providing him an opportunity to admit or deny the previous convictions. At the conclusion of the State's case, the trial court stated in the absence of the jury:
        The defendant is now at a point where he must make an election to whether or not he wishes to stipulate he has three prior driving while impaired offenses, or put the state to the burden of presenting those records to the jury and proving it beyond a reasonable doubt.

After a brief conversation with the prosecutor, defendant deniedthe convictions. As noted in State v. Phillips, 152 N.C. App. 679, 686, 568 S.E.2d 300, 304 (2002), lack of a formal arraignment is not reversible error provided a defendant is fully aware of the charge against him. Defendant's argument is without merit and this assignment of error is overruled.
    Defendant next contends that the trial court erred in failing to declare a mistrial when the jury reported it was unable to reach a verdict. G.S. . 15A-1235 allows the trial court to “require the jury to continue its deliberations” when it appears that the jury has not been able to agree. However, the trial court “may not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.” Defendant argues that when the foreperson requested instruction because the jury was unable to reach a unanimous verdict after approximately four hours of deliberation, the judge should have granted his motion for a mistrial. Denying the motion, the court requested that the jurors “try just a little bit more” to reach a verdict, but further instructed them “none of you should surrender your honest conviction as to the weight or effect of the evidence.” One hour and twenty minutes later, the jury presented its verdicts.     We examine the totality of the circumstances to discern coercion by the trial court as required by State v. Patterson, 332 N.C. 409, 416, 420 S.E.2d 98, 101 (1992); see also State v. Woody, 124 N.C. App. 296, 309, 477 S.E.2d 462, 468 (1996) (noting that four hours of deliberations with repeated breaks is not a coercive length of time.) Attempts to coerce the jury into reaching averdict constitute an abuse of discretion. State v. Burroughs, 147 N.C. App. 693, 698, 556 S.E.2d 339, 343 (2001) (listing cases where the trial court's instructions referring to the time and expense of a new trial constituted error). Here, however, the judge “properly exercised his discretion to hold the jurors to their duty to deliberate thoroughly together before concluding that they were indeed unable to agree.” State v. Bussey, 321 N.C. 92, 97, 361 S.E.2d 564, 567 (1987). After a careful examination of the record, we determine that the trial court did not abuse its discretion in denying the motion for mistrial; there were no improper statements concerning the effect of the jury remaining deadlocked, nor were the deliberations unreasonably lengthy. This assignment of error is overruled.
    Finally, defendant maintains his conviction of both driving while impaired and habitual driving while impaired violated his double jeopardy rights. Thus, he argues, the trial court should have dismissed one of the charges. We disagree.
    Habitual driving while impaired is a substantive offense, State v. Priddy, 115 N.C. App. 547, 445 S.E.2d 610, disc. review denied, 337 N.C. 805, 449 S.E.2d 751 (1994), as well as a punishment, or recidivist, offense. State v. Vardiman, 146 N.C. App. 381, 385, 552 S.E.2d 697, 700 (2001), cert. denied, ___ U.S. ___, 154 S.E.2d 51 (2002). “Prior convictions of driving while impaired are the elements of the offense of habitual impaired driving, but the statute 'does not impose punishment for [these] previous crimes, [it] imposes an enhanced punishment' for thelatest offense.” Id. (citation omitted).
    Driving while impaired is an element of habitual driving while impaired, G.S. . 20-138.5, and is a lesser included offense of that charge. State v. Scott, 356 N.C. 591, 573 S.E.2d 866 (2002). Thus, it was not error for the trial court to deny the motion to dismiss and charge the jury as to both offenses. However, as conceded by the State, defendant cannot be sentenced for both habitual driving while impaired and the lesser included offense, punishing twice for the same conduct. State v. Gardiner, 315 N.C. 444, 340 S.E.2d 701 (1986). “Double jeopardy bars additional punishment where the offenses have the same elements or when one offense is a lesser included offense of the other.” State v. McAllister, 138 N.C. App. 252, 255, 530 S.E.2d 859, 862, appeal dismissed, 352 N.C. 681, 545 S.E.2d 724 (2000). Upon sentencing defendant for habitual driving while impaired, the trial court should have arrested defendant's conviction of driving while impaired.
    No error, remanded for arrest of judgment upon the conviction of driving while impaired.
    Judges TYSON and LEVINSON concur.
    Report per Rule 30(e).

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