An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-351

NORTH CAROLINA COURT OF APPEALS

Filed: 2 December 2003
                

STATE OF NORTH CAROLINA

    v.                            Mecklenburg County
                                No. 01 CRS 103490
TARVISH LEVITIUS DUNHAM
    

    Appeal by defendant from judgment dated 19 September 2002 by Judge W. Robert Bell in Mecklenburg County Superior Court. Heard in the Court of Appeals 19 November 2003.

    Attorney General Roy Cooper, by Assistant Attorney General David Gordon, for the State.

    Mary Exum Schaefer for defendant-appellant.

    BRYANT, Judge.

    Tarvish Levitius Dunham (defendant) appeals from a judgment dated 19 September 2002 entered consistent with a jury verdict finding him guilty of taking indecent liberties with a child, but not guilty of first-degree rape.
    The transcript indicates that after deliberations, the jury stated to the trial court: “We are unable to reach a unanimous verdict, in either charge; and, have confirmed that no juror will be convinced to change their mind.” Immediately, d efendant moved for a mistrial. The trial court denied the motion, noting the jury had deliberated for only two hours. The trial court subsequently declared a recess for lunch. After the recess, thetrial court requested the jury to continue deliberations and instructed the jury as follows:
            Ladies and Gentlemen of the jury, the foreperson inform[s] me that you, so far, have been unable to agree upon 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 the matter over, together, as reasonable men and women.
            You have a duty to consult with one another and to deliberate with a view toward reaching an agreement, if it can be done, without violence to 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 re-examine your own views and change you're [sic] opinions, if they are erroneous. But, none of you should surrender your honest conviction as to the weight or affect [sic] of the evidence, solely because of the opinion of your follow [sic] jurors; or, for the mere purpose of returning a verdict.

            I will now let you resume your deliberations and see if you can reach a verdict, in this matter.
    Deliberations resumed. Approximately one hour later, the jury asked the trial court: “Please again explain the definition of first-degree rape and attempted rape. We need to understand the distinction between the two.” The trial court re-instructed the jury on the elements of first-degree rape and attempted first-degree rape.
    Two hours later, the trial court called the jury back into thecourtroom, informed the jury that the time was 4:48 p.m., and inquired whether the jury would like to continue deliberations. The jury foreman stated, “I really feel like we were making good progress; and, just almost were on a verge and were called out. We really would like to go ahead and continue.” The trial court stated:
        Okay. Do you have any idea--what I am thinking; and, I don't want to rush you; is because, people have other obligations is to say maybe leave you out until 6 o'clock, if it were to take that long. Is anybody on the jury that that's going to inconvenience you?

    The jury foreman indicated deliberations should not take longer than 6:00 p.m. Afterwards, the jury returned to the jury room. At 5:50 p.m., the jury returned with its verdict.

______________________

    The sole issue on appeal is whether the trial court erred by denying defendant's motion for a mistrial after the jury had indicated that it was unable to reach a verdict as to either charge. Defendant argues such denial resulted in a coerced or compromise verdict. We disagree.
    N.C. Gen. Stat. § 15A-1235(b) (2001) provides:
        (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.

    If the jury appears unable to reach a verdict, the trial court may require the jury to continue deliberations and repeat the instruction enumerated in subsection (b), as long as the trial court does “not require or threaten to require the jury to deliberate for an unreasonable length of time.” N.C.G.S. § 15A- 1235(c) (2001). The trial court may declare a mistrial “[i]f it appears that there is no reasonable possibility of agreement.” N.C.G.S. § 15A-1235(d) (2001). “The purpose behind the enactment of N.C.G.S. § 15A-1235 [is] to avoid coerced verdicts from jurors having a difficult time reaching a unanimous decision.” State v. Evans, 346 N.C. 221, 227, 485 S.E.2d 271, 274 (1997) (citation omitted).
    The decision to grant or deny a motion for mistrial lies within the sound discretion of the trial court. State v. Wall, 304 N.C. 609, 621, 286 S.E.2d 68, 76 (1982). The trial court's ruling in this regard will not be disturbed absent abuse of discretion. State v. Nobles, 350 N.C. 483, 511, 515 S.E.2d 885, 902 (1999). In determining whether the jury's verdict is coerced, this Court must consider the totality of the circumstances surrounding the verdict. State v. Beaver, 322 N.C. 462, 464, 368 S.E.2d 607, 608 (1988); State v. Baldwin, 141 N.C. App. 596, 608, 540 S.E.2d 815, 823(2000).
    State v. Baldwin provides a useful comparison to the instant case. After deliberations in Baldwin, the jury stated that it could not decide on the two charges against the defendant. Baldwin, 141 N.C. App. at 608-09, 540 S.E.2d at 824. The trial court requested the jury to continue deliberations, noting that they had been deliberating for only two-and-one-half hours. Id. at 609, 540 S.E.2d at 824. Following a dinner break and two more hours of deliberations, the jury again stated that it was at an impasse. Id. The trial court then gave the jury a fifteen-minute recess. Id. On return of the jury, the trial court issued the following instruction:
        The [c]ourt wants to emphasize the fact that it is your duty to do whatever you can to reach a verdict. You should reason the matter over together as reasonable men and women and attempt to reconcile your differences, if you can, without the surrender of conscientious convictions, but you should not surrender your honest convictions 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.
Id.
    After another hour of deliberations, the jury stated that it was at an impasse for the third time. Id. After further inquiry, the trial court concluded the jury had been making progress and requested the jury to continue deliberations. Id. One hour later, the jury returned with a verdict of guilty as to both charges. Id.
    In holding the trial court did not err in denying the defendant's motion for a mistrial, this Court noted that the trialcourt “never expressed irritation at the jury for failing to reach a unanimous verdict, or intimated that the jury would be held for an unreasonable period of time to reach such a verdict.” Id.
    In comparison, the jury in the instant case faced fewer impasses and reached a verdict in a shorter time. Here, the jury indicated only once that it was unable to reach a unanimous verdict, whereas in Baldwin, the jury faced a deadlock three times. As in Baldwin, the trial court in the instant case re-instructed the jury pursuant to N.C.G.S. § 15A-1235(c) following the jury's deadlock. Accordingly, the totality of the circumstances in this instance does not indicate the jury verdict was coerced, and the trial court did not abuse its discretion in denying defendant's motion for a mistrial.
    Finally, defendant argues the denial of his motion for a mistrial resulted in a compromise verdict. Citing State v. Rhinehart, 322 N.C. 53, 366 S.E.2d 429 (1988), defendant contends “[s]ince the jury returned with a verdict finding defendant not guilty of any of the rape charges, but only the lesser, indecent liberties charge, it could be inferred that this jury believed . . . that they needed to return finding defendant guilty of something.” We disagree.
    The Court in Rhinehart dealt with the issue of when the trial court should give an instruction on lesser-included offenses and concluded that when the evidence does not support an instruction on a lesser-included offense, providing such instruction would invite a compromise verdict. Id. at 59, 366 S.E.2d at 432. In otherwords, “defendant would be found guilty of an offense, which he did not commit, for the sole reason that some of the jurors believe him guilty of the greater offense.” Id.
    In the instant case, defendant was charged with first-degree rape and taking indecent liberties with a child. Taking indecent liberties with a child, however, is not a lesser-included offense of first-degree rape. State v. Weaver, 306 N.C. 629, 635, 295 S.E.2d 375, 378 (1982), overruled on other grounds, State v. Collins, 334 N.C. 54, 61, 431 S.E.2d 188, 193 (1993). Therefore, defendant's assignment of error is overruled.
    No error.
    Chief Judge EAGLES and Judge LEVINSON concur.
    Report per Rule 30(e).

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