An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1566


Filed: 15 July 2003


         v.                        Forsyth County
                                No. 01 CRS 59492

    Appeal by defendant from judgment entered 24 July 2002 by Judge William Z. Wood, Jr. in Forsyth County Superior Court. Heard in the Court of Appeals 7 July 2003.

    Roy Cooper, Attorney General, by Jane Rankin Thompson, Assistant Attorney General, for the State.

    Charns & Charns, by D. Tucker Charns, for defendant-appellant.

    STEELMAN, Judge.

    Defendant, Cornell Surles, was charged with first-degree rape, first-degree sexual offense and taking indecent liberties. He appeals a conviction of taking indecent liberties with a child. For the reasons discussed herein, we find no error.
    A recitation of the evidence is not necessary to an understanding of the sole issue presented: whether the court committed plain error by failing to declare a mistrial when the jury indicated some inability to reach a unanimous verdict. We hold that the trial court did not err.
    The record shows that the jury began deliberating at 3:55 p.m. and the court excused them for an overnight recess at approximately 5:05 p.m. The jury resumed deliberations at 9:05 a.m. the nextmorning. Before breaking for lunch, the jury returned with a request for the court to repeat its instructions regarding reasonable doubt. The court complied with the jury's request, and the jury resumed deliberations after lunch at 2:06 p.m. At approximately 2:44 p.m., the jury returned to the courtroom with a note from the foreman indicating the jury was divided as follows: first-degree rape and first-degree sexual offense, guilty 2, not guilty 10; and taking indecent liberties, guilty 4, not guilty 8. The note also contained the following statement: “At this time it does not appear that further discussion will result in any change. How should we proceed?” At that point, both parties requested the court to instruct the jury regarding their duty to reach a verdict. The court instructed the jury in accordance with N.C. P.I. _ Crim. 101.40 (1980) as follows:
        Well, ladies and gentlemen, your foreperson or foreman informs me that you have so far been unable to agree upon a verdict _ a verdict. The Court wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason this matter over together as reasonable men and women and to reconcile your differences if you can without the surrender of conscientious convictions.
        Now, y'all have a duty to consult with one another and to deliberate together with a view to reaching an agreement if it can be done without violence to _ to your individual judgment. Each of you must decide the case for yourself but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, each of you should not hesitate to reexamine your own views and change your opinion if it is erroneous, but none of you should surrender your honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the merepurpose of returning a verdict.

        Again, no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. I'll now let you resume your deliberations and see if you can reach a verdict. Thank you.

Defendant did not object to these instructions and did not move for a mistrial. We therefore use a plain error analysis. N.C. R. App. P. 10.
    The jury exited the courtroom at 2:46 p.m. to resume deliberations. The court offered the parties the opportunity to request any additions, corrections or changes to the charge. Both parties declined. At 5:00 p.m., the court expressed its intent to return the jury to the courtroom for a progress update. The court asked the parties for guidance. Both parties agreed that if the vote had changed, then further deliberation either that day or the next day may be appropriate. The bailiff reported that the jury needed a couple of minutes to vote. The bailiff then reported that the jury had a verdict and that the jury requested time to pray before returning to the courtroom. At 5:05 p.m, the jury entered the courtroom with its verdict.
    Plain error is an error “'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.'” State v. Parker, 350 N.C. 411, 427, 516 S.E.2d 106, 118 (1999), cert. denied, 528 U.S. 1084, 145 L. Ed. 2d 681 (2000) (citations omitted).     The decision whether to declare a mistrial when the jury may be deadlocked is within the discretion of the trial judge, whose ruling will not be disturbed absent a showing of manifest abuse of discretion. State v. Baldwin, 141 N.C. App. 596, 607, 540 S.E.2d 815, 823 (2000). The decision whether to charge a jury pursuant to N.C. Gen. Stat. § 15A-1235 is also within the discretion of the trial judge. State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986).
    We find no plain error. Nothing in the record indicates that the jury was hopelessly deadlocked at the time it returned to the courtroom with the note. Defendant expressed agreement to continued deliberations if the jury had made any progress. In charging the jury pursuant to N.C. Gen. Stat. § 15A-1235(c), the court made it clear to the jurors not to surrender a conscientious belief for the purpose of reaching a unanimous verdict. We hold defendant had a fair trial, free of prejudicial error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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