An unpublished opinion of the North Carolina Court of Appeals does not constitute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
A   p   p    e   l   l   a    t   e       P   r    o   c   e   d    u   r   e   .




                                  NO. COA13-648

                      NORTH CAROLINA COURT OF APPEALS

                            Filed: 21 January 2014


STATE OF NORTH CAROLINA


      v.                                    Buncombe County
                                            No. 12 CRS 325
TAMATHA SUE BROCK,
     Defendant.


      Appeal by defendant from judgment entered 23 January 2013

by   Judge   Mark   E.   Powell   in   Buncombe    County    Superior    Court.

Heard in the Court of Appeals 11 December 2013.


      Attorney General Roy Cooper, by Assistant Attorney General
      Torrey D. Dixon, for the State.

      James N. Freeman, Jr., for defendant-appellant.


      BRYANT, Judge.


      Where the jury indicated it was deadlocked and the trial

court reinstructed the jury pursuant to N.C. Gen. Stat. § 15A-

1235 by asking them to continue deliberating towards a verdict,

such reinstruction was proper and not coercive.
                                            -2-
     On     6       February        2013,     defendant       Tamatha      Sue     Brock

(“defendant”)        went     to    the    Jim    Barkley    Toyota    dealership    in

Asheville and asked to test drive a Prius.                      The dealership gave

defendant a permit to test drive the vehicle for one hour, from

1:00 p.m. to 2:00 p.m., that afternoon.                      After defendant failed

to   return        the    vehicle     by     5:00   p.m.     that     afternoon,    the

dealership reported the vehicle stolen.

     On    7       February     2012,      defendant   was     stopped     by    Trooper

Kenneth L. Riggle of the Pennsylvania State Police Department

and arrested for driving a stolen vehicle.                            Defendant spent

three days in a Pennsylvania jail before being transferred back

to North Carolina.

     On 9 July 2012, defendant was indicted by a Buncombe County

grand     jury      for   one      count    of    obtaining     property    by     false

pretenses. On 23 January 2013, a jury found defendant guilty of

obtaining property by false pretenses.                      Defendant was sentenced

to eight to nineteen months in prison with a suspended sentence

of thirty months.           Defendant appeals.

                                   ________________________

     On appeal, defendant argues that the trial court erred in

charging the jury improperly.               We disagree.

                     The trial judge has no right to coerce
               a   verdict or in any way to intimidate a
                                            -3-
               jury.   A charge which might be reasonably
               construed by a juror as requiring him to
               surrender his well-founded convictions or
               his own will or judgment to the views of the
               majority is erroneous.

State    v.    Cousin,    292     N.C.    461,    464,     233    S.E.2d    554,    556—57

(1977) (citations omitted).                 “In deciding whether the court's

instructions forced a verdict or merely served as a catalyst for

further       deliberation,       an     appellate       court    must     consider      the

circumstances       under      which     the    instructions were          made    and   the

probable        impact      of      the        instructions         on      the     jury.”

State v. Alston,         294     N.C.    577,     593,    243     S.E.2d    354,    364—65

(1978)     (citations       omitted).             We     review    a     trial     court’s

reinstructing of a jury de novo.                  State v. Gettys, ___ N.C. App.

___, ___, 724 S.E.2d 579, 586 (2012).

               [T]he right to a unanimous jury verdict is
               fundamental   to   our    system   of   justice.
               Furthermore, the proper standard of review
               for an alleged error that violates a
               defendant's   right    to   a   unanimous   jury
               verdict . . . is harmless error, under which
               the State bears the burden of showing that
               the error was harmless beyond a reasonable
               doubt.   An error is harmless beyond a
               reasonable doubt if it did not contribute to
               the defendant's conviction.

State v. Gillikin, ___ N.C. App. ___, ___, 719 S.E.2d 164, 168

(2011) (citations, quotations, and bracket omitted).
                                     -4-
    Defendant argues that the trial court improperly instructed

the jury after the jury indicated that it had deadlocked by

giving coercive instructions.         North Carolina General Statutes,

section   15A-1235    sets   forth   a     non-coercive   jury     charge   as

established   by    our   United   States   Supreme   Court   in    Allen   v.

United States, 164 U.S. 492 (1896):

           (a)    Before   the    jury   retires   for
           deliberation,  the   judge  must   give  an
           instruction which informs the jury that in
           order to return a verdict, all 12 jurors
           must agree to a verdict of guilty or not
           guilty.

           (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
                                       -5-
                    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).

N.C. Gen. Stat. § 15A-1235(a)—(c) (2011).

     Where     a    jury    has   deadlocked       during    deliberations,      our

Supreme Court has held that N.C.G.S. § 15A-1235 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) (citation omitted).                "It is clearly within the

sound discretion of the trial judge as to whether to give an

instruction        pursuant   to N.C.G.S.      §    15A-1235(c)."        State    v.

Williams, 315 N.C. 310, 326—27, 338 S.E.2d 75, 85 (1986).

             [I]n   situations   where   the  trial   court
             perceives the jury may be deadlocked or may
             be    having    some    difficulty    reaching
             unanimity, and the trial court in its
             discretion gives further instruction, no
             "clear violation" of the statute will be
             found to exist as long as the trial court
             gives the substance of the four instructions
             found in N.C.G.S. § 15A-1235(b).

State v. Fernandez, 346 N.C. 1, 23, 484 S.E.2d 350, 364 (1997).
                                    -6-
    Here, after deliberating two hours and eighteen minutes,

the jurors sent a note to the trial court which stated “[a]t

this time we are unable to come to a unanimous decision.                 Right

now we are at 7 guilty – 5 not guilty and neither sides are

budging.”       After consulting with counsel for both sides, the

trial   court    brought   the   jury   back   to   the   court   room    for

reinstruction:

                 Members of the jury, I have read your
            note and I have read it to the attorneys
            concerning at this time you are unable to
            come to a unanimous decision and neither
            sides are budging.

                 I appreciate the attention you have
            given to this case. I am not going to stop
            the deliberations just yet.    On the other
            hand, I am not going to ask you to come back
            tomorrow. We are going to finish this one
            way or another today.

                 As jurors, and as reasonable people of
            this   community,  you   are  to   take  the
            necessary steps to resolve this dispute.
            That’s what you’re here for.   You shouldn’t
            hesitate to reconsider your position and
            just to sit back and listen to what other
            jurors are saying. But on the other hand, if
            you have an honest conviction one way or the
            other about this, you are not required to
            surrender that. That is just as important.

                 So I am going to ask you to resume your
            deliberations, and after a particular period
            of time, I will see what happens and what we
            need   to  do.     So  please   resume  your
            deliberations.
                                     -7-
After the jury deliberated for another forty-five minutes the

trial court, after consulting with counsel, called the jury back

at 4:18 p.m. and stated “I want to ask you if the jury continues

deliberations    today,   do   you     believe     there’s        a    reasonable

probability that progress would be made in resolving the issues

you need to resolve?”      After the jury’s foreperson answered in

the affirmative, the trial court sent the jury back for further

deliberations; the jury returned a unanimous verdict at 4:44

p.m.

       Defendant contends that the trial court’s reinstructions

were improper because the trial court failed to tell the jury

that it was to take the necessary steps to resolve their dispute

“without violence to individual judgment.”               We find defendant’s

contention to lack merit, as the trial court’s reinstruction

clearly   gave   “the   substance    of    the   four    instructions          found

in N.C.G.S. § 15A-1235(b).”          Fernandez, 346 N.C.              at 23, 484

S.E.2d at 364.      Although the trial court did not repeat the

language of N.C.G.S. § 15A-1235(b) verbatim, it did provide the

appropriate   substance   of   the   statute     by     telling       jurors    that

“[a]s jurors, and as reasonable people of this community, you

are to take the necessary steps to resolve this dispute”; “[y]ou

shouldn’t hesitate to reconsider your position and just to sit
                                         -8-
back and listen to what other jurors are saying”; “if you have

an honest conviction one way or the other about this, you are

not required to surrender that.              That is just as important.”                As

such,   the   trial      court    reinstructed     the    jury       in    a    way   that

comports with the substance of N.C.G.S. § 15A-1235(b).                           See id.

(holding that the reinstructions “fairly apprised the jurors of

their duty to reach a consensus after open-minded debate and

examination        without       sacrificing      their        individually           held

convictions merely for the sake of returning a verdict”).

    Defendant         further       argues       that     the        trial       court’s

reinstructions       were    erroneous    because        of    the    trial      court’s

“added language.”           Specifically, defendant points to the trial

court’s statements that “I am not going to ask you to come back

tomorrow.     We   are    going    to   finish    this        one    way   or    another

today[]” as coercive because such statements, without mention of

the possibility of a mistrial, made jurors believe that they had

to return a verdict.              Defendant’s argument lacks merit.                     In

considering the totality of circumstances in which a trial court

has given its reinstructions, this Court has held that a trial

court’s reinstructions were not coercive where a jury was asked

to continue its deliberations in the hope                       that the deadlock

might be resolved.           See State v. Lee, ___ N.C. App. ___, 720
                                            -9-
S.E.2d 884 (2012) (holding that the trial court’s reinstructions

did not violate           N.C.G.S. § 15A-1235 despite the trial court

telling the jury to call and let anyone know that they would be

delayed because “we are going to stay here this evening with a

view towards reaching a unanimous verdict”); State v. Swinson,

No. COA11-557, 2012 N.C. App. LEXIS 162 (N.C. Ct. App. Feb. 7,

2012) (holding that the trial court’s reinstruction that “Ladies

and gentlemen, I must emphasis [sic] the fact that it is your

duty to do whatever you can to reach a verdict . . . .                             Now

please return to the jury room and resume your deliberations and

see if you can reach a verdict[]” did not violate N.C.G.S. §

15A-1235); State v. Green, 95 N.C. App. 558, 383 S.E.2d 419

(1989) (holding that the trial court’s reinstruction to the jury

that “’[y]ou all may retire to the Jury room and make up your

verdict[]’      .    .    .   merely   served     as   a   catalyst    for   further

deliberation” and was not coercive).

    Here, the trial court did not did not coerce the jury to

produce a verdict, but rather asked the jury to continue its

deliberations.           As such, the trial court’s reinstruction “merely

served as a catalyst for further deliberation.”                   As we find the

trial   court       did    not   err   in   its   reinstruction       of   the   jury,

defendant’s argument is overruled.
                         -10-
No error.

Judges CALABRIA and GEER concur.

Report per Rule 30(e).
