An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA03-375

NORTH CAROLINA COURT OF APPEALS

Filed: 18 May 2004

STATE OF NORTH CAROLINA

         v.                        Brunswick County
                                No. 01CRS51310
GLENN DAVIS BOWEN
    

    Appeal by defendant from judgment entered 12 December 2002 by Judge D. Jack Hooks, Jr. in Brunswick County Superior Court. Heard in the Court of Appeals 12 April 2004.

    Attorney General Roy Cooper, by Assistant Attorney General C. Norman Young, Jr., for the State.

    Margaret Creasy Ciardella for defendant-appellant.

    TIMMONS-GOODSON, Judge.

    Glenn Davis Bowen (“defendant”) appeals his conviction of robbery with a dangerous weapon. For the reasons stated herein, we hold that defendant received a trial free of prejudicial error.
    The State's evidence presented at trial tends to show that defendant robbed a Food Lion grocery store in Leland, North Carolina, around midnight on 26 December 2000. Elizabeth Pierce (“Pierce”), an employee of the Food Lion, testified that she was working the three to midnight shift on 26 December 2000, when she was approached by a masked man who pointed a rusty single-barrel shotgun at her and demanded money. Pierce went over to the safe and tried to activate the store's silent alarm, but was unable to doso. Pierce then opened the safe to show the robber that it was empty.
    At that point, another store employee, Barbara Ractor (“Ractor”), approached the front of the store. When Ractor saw the robbery in progress, she attempted to hide, but the robber saw her. The robber put the gun to Pierce's side, and told Ractor, “Get up here or I'm going to shoot her.” In response, Ractor came into the store and began helping the robber put rolls of coins into a bag. The robber knocked some change out of Pierce's hand and told her to give him the money from her register. After obtaining this money, the robber ordered the two women to the back of the store and he left. The timer on the surveillance camera indicated that a minute and a half elapsed between the robber's entry into and exit from the store. Police were subsequently called to the scene.
    Pierce described the robber to the responding officer as wearing a “Chicago Bulls” Starter jacket that appeared to have something underneath, and a child's ski mask with eye holes cut out. Pierce noted that the mask kept creeping up during the robbery, exposing portions of the robber's face. Though the robber would pull it back down, Pierce explained that she was able to see all of the robber's face with the exception of his forehead, nose, and the tops of his ears. Ractor also described the ski mask worn by the robber as appearing to belong to a child, with eyes cut out by scissors. At trial, she testified that the mask would “rim up” to the robber's nose, allowing her to get a good look at him. Pierce and Ractor identified defendant as the robber in aphotographic lineup and in court.
    Betty Suggs (“Suggs”), who was incarcerated for breaking and entering and car theft at the time of trial, testified that she knew defendant and that she had previously participated in criminal activity with him. Suggs testified that she had seen the 26 December 2000 surveillance videotape from Food Lion and recognized the robber on the tape as defendant. In fact, Suggs stated that she recognized the gun, jacket and mask defendant wore during the robbery.
    Defendant presented the alibi testimony of his girlfriend, Ella Mae Bowen (“Ella Mae”), and brother, Kenneth Bowen (“Kenneth”). Ella Mae testified that defendant was at their home in bed with her between 11:30 and midnight on 26 December 2000. Kenneth testified that he was at defendant's house from approximately 10:00 p.m. until 10:10 p.m. on the night of the robbery. Kenneth further testified that defendant was not dressed “to go out,” but instead wore a t-shirt and boxers when he answered the door.
    The jury found defendant guilty of robbery with a dangerous weapon. The trial court entered judgment on the jury verdict, and sentenced defendant to a presumptive term of 117 to 150 months imprisonment. Defendant appeals.

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    Defendant first argues that the trial court erred in deviating from the pattern jury instruction and failing to instruct the jury on the identity of the defendant in violation of the Due ProcessClauses of the United States and North Carolina Constitutions. Since defendant failed to object to the court's instruction or request an alternative instruction, as required by N.C. R. App. P. 10(b)(2), he seeks review under the plain error rule.
    As stated by our Supreme Court in State v. Odom,
        The 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'” or where the error is such as to “seriously affect the fairness, integrity or public reputation of judicial proceedings” or where it can be fairly said “the instructional mistake had a probable impact on the jury's finding that the defendant was guilty.”

307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)(quoting United States v. McCaskill, 676 F. 2d 995, 1002 (4th Cir. 1982). The Odom Court went on to quote, “'it is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.'” Id., quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977). It is important to note that even in cases where the defendant requests a particular instruction or objects to that given, the trial court need not give an instruction verbatim even though it is a correct statement of the law, so long as the instruction is given in substance. State v. Dodd, 330 N.C. 747, 753, 412 S.E.2d 46, 49 (1992). In deciding whether the trial court did commit “plain error” in instructing thejury, this Court must examine the entire record. Id.
    At the outset, the trial court instructed the jury with regard to defendant's plea of not guilty, and cautioned the jury that the fact that he had been charged should not be used by them as evidence of defendant's guilt. In fact, the court stated, “The State must prove to you that the Defendant is guilty beyond a reasonable doubt.” The court then went on to define “reasonable doubt.” More specifically, the court gave the following instruction as to the crime charged:
            I charge that for you to find the Defendant guilty of robbery with a firearm, the State must prove to you, the jury, beyond a reasonable doubt seven things:
            First, that the Defendant took property from the person of another or in his or her presence.
            Second, that the Defendant carried away the property;
            Third, that the person did not voluntarily consent to the taking and carrying away of the property;
            Fourth, that the Defendant knew he was not entitled to take the property;
            Fifth, that at the time of the taking, the Defendant intended to deprive that person of the use of that property permanently. . . .
            Sixth, the State must prove to you, the jury, beyond a reasonable doubt that the Defendant had a firearm in his possession at the time he obtained the property; and
            Seventh, that the Defendant obtained the property by endangering or threatening the life of that person or another person with the firearm.
            So, ladies and gentlemen, I charge that if you find from the evidence beyond a reasonable doubt that on or about the alleged date the Defendant had in his possession a firearm; and took and carried away property from a person or presence of a person, without that person's voluntary consent, by endangering or threatening her life or another person's life with the use or threatened useof a firearm; the Defendant knowing that he was not entitled to take the property; and intending to deprive that person of its use permanently, then it would be your duty to return a verdict of guilty of a robbery with a firearm.
            However, if you do not so find or if you have a reasonable doubt as to one or more of these things, then it would be your duty to return a verdict of not guilty in this matter.
Although defendant did not object to the court's instruction as given, nor request further instruction on the issue of identity, he now takes issue with the fact that the trial court failed to give the following portion of the pattern jury instruction pertaining to identity:
        I instruct you that the State has the burden of proving the identity of the defendant as the perpetrator of the crime charged beyond a reasonable doubt. This means that you, the jury, must be satisfied beyond a reasonable doubt that the defendant was the perpetrator of the crime charged before you may return a verdict of guilty.
N.C.P.I. Crim. 104.90.
    From the trial court's instruction, the jury was adequately apprised of the State's burden to prove that defendant was the perpetrator of the crime charged before it could return a guilty verdict. See State v. Penland, 343 N.C. 634, 656, 472 S.E.2d 734, 746 (1996) reh'g denied Penland v. North Carolina, 519 U.S. 1098 (1997). Defendant's arguments to the contrary are unpersuasive, and therefore, we conclude that the trial court did not commit plain error in failing to include N.C.P.I. Crim. 104.90 in its instruction. Id.
    Defendant next argues that the trial court committed plainerror to warrant reversal when it failed to further instruct the jury when the jury informed the court that it was “hung” after deliberating approximately 50 minutes. Again, defendant seeks plain error review of this issue since he failed to request any further instruction be given to the jury. See N.C. R. App. P. 10(b)(2) (2004).
    N.C. Gen. Stat. . 15A-1235 provides in pertinent part:
        (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.
(2003). It is within the sound discretion of the trial court to give further instruction as detailed in . 15A-1235(c). State v. Williams, 315 N.C. 310, 326-27, 338 S.E.2d 75, 85 (1986).
    In the instant case, the trial court properly instructed the jury regarding their duty to deliberate and return a unanimous verdict prior to the jury retiring, pursuant to subsections (a) and (b). Just fifty minutes after being so instructed and retiring to deliberate, the jury sent out a note asking whether they could have a hung jury. Out of the presence of the jury, the court told counsel that the jury could indeed be hung, but “not this early in the day.” When the jury returned to the court room, the following exchange occurred between the court and jury foreman:
        COURT: . . . At this point, what I am goingto do is allow you to resume your deliberations to see if you can arrive at a unanimous verdict in this matter. You've been out about 50 minutes. It's been a two day trial. I don't know-- I'm certainly not trying to coerce anything, and I'm not going to. However, I do want to make sure that everybody gets the chance to fully discuss all of the evidence, all of the law, and to participate in deliberations, and I think a little further deliberations may be worthwhile. In my discretion, that's what we're going to do.

            Now, the question I have for you is simply this: Do you want to try and deliberate a little further and resolve this matter this afternoon, or do you wish to resume it at 9:30 tomorrow morning?

            FOREPERSON: Are you directing this question to me or to all of us?

            COURT: All.

            FOREPERSON: I don't think it's going to make a difference, your Honor. We have a couple of people whose minds can't be --

        . . . .
            COURT: All right, sir. I understand, but bear with me if I'm hardheaded, and we'll try. Now, would you like to try this afternoon for another 30 to 45 minutes, or would you like to try tomorrow morning?
        (FOREPERSON AND REMAINING JURORS CONFER)

            FOREPERSON: Come back tomorrow, your Honor.
The jurors returned the next morning and, without further instruction, resumed deliberations at approximately 9:50 a.m. Defendant did not request any further instruction to be given. The jury reached its verdict of guilty in approximately one hour.
    After a thorough review of the record, we conclude that the trial court did not abuse its discretion in failing to repeat itsinstruction on the jury's duty to deliberate and return a unanimous verdict as fully set out in G.S. 15A-1235(a) and (b). Moreover, contrary to defendant's contention, the court's “partial instruction” to the jury upon the members of the jury's return to the courtroom did not amount to coercion. The jury had only been in the jury room 50 minutes before inquiring about a “hung jury.” After having a brief discussion and finding out the nature of the problem, we believe that the court acted reasonably in excusing the jury for the remainder of that day, and asking the jury members to return on the next morning to resume deliberations. Accordingly, we also reject defendant's argument of plain error in this regard.     Having so concluded, we hold that defendant received a fair trial free from prejudicial error.
    No error.
    Judges CALABRIA and ELMORE concur.
    Report per Rule 30(e).

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