      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,                                                                c=>


                                         )       DIVISION ONE
                                                                                    T>    m^
                      Respondent,                                                   50    o^
                                         )       No. 69754-4-1                  r\>
                                                                                          "VI'
                 v.
                                         )       UNPUBLISHED OPINION            3
                                                                                —
                                                                                          zr
RAVIS L. DUNN,                                                                  o         c^co

                                                                                ro
                                                                                O
                      Appellant.         )       FILED: April 21,   2014



       Dwyer, J. — Ravis Dunn and Rachelle Lawson lured Shannan Cassidy

out of a house and down to a vehicle with the promise of selling him a sports

jersey. Dunn then pulled out a pistol, brandished it at Cassidy, and said, "you

know what this is, nigga." Thinking that he was being robbed, Cassidy gave

Dunn his wallet. When Dunn began to check Cassidy's pockets, Cassidy pushed

the gun away and the two "tussled." After disentangling himself, Dunn stepped

back and shot Cassidy in the hip.

       The State charged Dunn with robbery in the first degree and assault in the

second degree. With respect to the assault charge, the jurywas instructed that it

could only convict on that charge if it found that an actual battery had been

committed. The jury convicted Dunn on both charges. On appeal, Dunn

contends that his assault conviction elevated the robbery to robbery in the first

degree, which should cause his assault conviction to merge into his robbery
No. 69754-4-1/2



conviction. He also contends that his right to a trial by a fair and impartial jury

was violated. In affirming Dunn's convictions, we conclude that each offense

required proof ofa fact not necessary to convict Dunn of the other offense, and
that the assault conviction, as charged and consistent with the jury's instructions,

did not elevate the robbery to robbery in the first degree. Further, we conclude

that Dunn's right to a fair and impartial jury was not violated. Accordingly, we

affirm.

                                                 I


          On July 16, 2011, Dunn encountered Rachelle Lawson, a friend he had
known for a number of years, at a bar. Lawson had argued with her boyfriend
earlier. Because she did not want to go home to see him, she left the bar with
Dunn in her boyfriend's Ford Bronco. The two drove to a home in West Seattle.
At the home were some of Dunn's friends, including Rebekah Gonzales,1 Nicole
Parke, and Kim Wilbur. Also present was Parke's friend, Shannan2 Cassidy.
After socializing with Dunn's friends, Lawson and Dunn left the house around
4:00 a.m. Before Lawson and Dunn left the house, however, Cassidy had

discussed sports jerseys while Dunn was present.

          The following afternoon, Lawson and Dunn returned to the same home in
West Seattle in the Ford Bronco. At some point that afternoon, Cassidy—who
was still present atthe West Seattle home when Lawson and Dunn returned—left
the house to look at sports jerseys stored in the Bronco. Although there was

          1 Now Rebekah MacMaster.
         2There is a claimed confusion over the spelling of Cassidy's first name. At trial, Cassidy
 spelled his first name "Shannan." Accordingly, so will we.
No. 69754-4-1/3



conflicting testimony as to who asked Cassidy to look at the jerseys and as to

who walked out to the Bronco with him, all accounts confirm that Cassidy left the

house to look at the jerseys. Lawson testified that the jerseys had been gifts she

had given to her boyfriend, which she had taken back following their argument.

       Once Cassidy walked outside and approached the Bronco, Dunn

produced a pistol, which he pointed at Cassidy's head, stating, "You know what

this is, nigga." Cassidy thought that he was being robbed. In response, Cassidy

pulled his wallet out of his pocket and handed it to Dunn. After Cassidy handed
his wallet to Dunn, Dunn checked Cassidy's pockets for other valuables. Dunn

felt Cassidy's checkbook in one of Cassidy's back pockets and tried to remove it,

at which point the two started "tussling over the gun." Once Dunn managed to
disentangle himself from Cassidy, Dunn stepped back and shot Cassidy in the
hip. After Dunn shot Cassidy, Dunn, Lawson, and another man named Quayvis,3
got in the Bronco and drove away.

       The State charged Dunn with robbery in the first degree, assault in the

second degree, and unlawful possession ofa firearm in the first degree. The
robbery and assault charges included the allegation that Dunn committed the
offenses while armed with a firearm. Lawson was initially charged with rendering

criminal assistance in the first degree. Later, she pleaded guilty to a reduced

charge and agreed to testify against Dunn. The information was then amended
to eliminate mention of Lawson's charge from Dunn's charging document.

       3Passersby corroborated Lawson's testimony thatanother man was present but
apparently uninvolved with the robbery. They all testified that hewas farther down the street,
apparently urinating. None of the occupants of the house, including Cassidy, ever saw Quayvis.
No. 69754-4-1/4



      The case was tried to a jury. On August 8, 2012 at 1:30 p.m., after

deliberating for more than eight hours over the course of two days, the jury sent a

note to the court, stating, "we have reviewed the evidence no one feels the need

to review further we are unable to reach a unanimouse [sic] verdict on any

count." The trial court then brought the jury into the courtroom and asked the

presiding juror, "Is there a reasonable probability of the jury reaching a
unanimous verdict within a reasonable timef?]" The presiding juror responded,

"No." The court then asked, "Is there any member of the jury that disagrees with

that statement. If so, please raise your hand." One of the jurors raised her hand.
The court then released the jurors for the day, instructing them to return the next

day to continue deliberations.

       The following morning, one ofthe jurors was ill. The trial court excused
the remaining jurors until the afternoon. In the afternoon, the entire jury,
including the ill juror, resumed deliberations and ultimately returned verdicts of
guilty as charged on all counts, concluding additionally that Dunn was armed with
a firearm during the commission of the robbery and the assault.
       At sentencing, Dunn asserted that the convictions for robbery in the first
degree and assault in the second degree should merge, and that the trial court
should therefore vacate the conviction for assault in the second degree. The trial

court rejected Dunn's assertion and imposed a sentence of 225 months in prison.
       Dunn appeals from the judgment and sentence.

                                           II


       Dunn claims that he should not have been convicted of both robbery in the
No. 69754-4-1/5



first degree and assault in the second degree. This requires us to address

several issues. The first issue is whether the legislature has, either expressly or

implicitly, evinced an intent to punish separately the offenses of assault in the

second degree and robbery in the first degree. The next question, which

requires us to apply the Blockburqer4 test, is whether each offense contains an

element that the other does not. The final issue is whether, in order for the jury

to convict the defendant of robbery in the first degree, it was necessary for the

jury to convict the defendant of assault in the second degree.

       The double jeopardy clauses of our state and federal constitutions protect

against multiple punishments for the same offense.5 Wash. Const, art. I, § 9;
U.S. Const, amend. 5; State v. Calle, 125 Wn.2d 769, 772, 888 P.2d 155 (1995).

Although the State may bring multiple charges arising from the same criminal
conduct, "'[wjhere a defendant's act supports charges under two criminal
statutes, a court weighing a double jeopardy challenge must determine whether,

in light of legislative intent, the charged crimes constitute the same offense.'"
State v. Freeman, 153 Wn.2d 765, 771, 108 P.3d 753 (2005) (quoting In re Pers.

Restraint of Orange, 152 Wn.2d 795, 815, 100 P.3d 291 (2004)). "If the

legislature authorized cumulative punishments for both crimes, then double
jeopardy is not offended." Freeman, 153 Wn.2d at 771.
        Recently, in State v. Esparza, 135 Wn. App. 54, 143 P.3d 612 (2006), we

       « Blockburqer v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).
         5The Washington double jeopardy provision, Wash. Const, art. I, § 9, iscoextensive with
the Fifth Amendment as interpreted by the United States Supreme Court. State v. Gocken. 127
Wn.2d 95, 107, 896 P.2d 1267 (1995). Claims of double jeopardy are reviewed de novo. State v.
Freeman.'153 Wn.2d 765, 770, 108 P.3d 753 (2005).
No. 69754-4-1/6



reiterated our approach to resolving double jeopardy issues, as elucidated by our

Supreme Court in Freeman.

            "Because the question largely turns on what the legislature
      intended, we first consider any express or implicit legislative intent.
      Sometimes the legislative intent is clear, as when it explicitly
      provides that burglary shall be punished separately from any
      related crime. RCW 9A.52.050. Sometimes, there is sufficient
      evidence of legislative intent that we are confident concluding that
      the legislature intended to punish two offenses arising out of the
                                eparately without more analysis. E.g..
      [State v.] Calle. 125 Wn.2d [769,] 777-78[, 888 P.2d 155 (1995)]
      (rape and incest are separate offenses).
             Second, ifthe legislative intent is not clear, we may turn to
      the Blockburqer test. See Calle, 125 Wn.2d at 777-78, 888 P.2d
      155; Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct.
      180, 76 L. Ed. 306 (1932). If each crime contains an element that
      the other does not, we presume that the crimes are not the same
      offense for double jeopardy purposes. Calle. 125 Wn.2d at 777;
      Blockburger. 284 U.S. at 304 (establishing "same evidence" or
      "same elements" test); State v. Reiff. 14 Wash. 664, 667, 45 P. 318
       (1896) (double jeopardy violated when "'the evidence required to
       support a conviction [of one crime] would have been sufficient to
       warrant a conviction upon the other'") (quoting Morev v.
       Commonwealth. 108 Mass. 433, 434 (1871)).
              When applying the Blockburqer test, we do not consider the
       elements of the crime on an abstract level. "'[W]here the same act
       or transaction constitutes a violation of two distinct statutory
       provisions, the test to be applied to determine whether there are
       two offenses or only one, is whether each provision requires proof
       of a fact which the other does not.'" rin re Personal Restraint ofl
       Orange. 152 Wn.2d [795,] 817[, 100 P.3d 291 (2004)] (quoting
       Blockburger, 284 U.S. at 304 (citing Gavieres v. United States. 220
       U.S. 338, 342, 31 S. Ct. 421, 55 L Ed. 489 (1911))). However, the
       Blockburger presumption may be rebutted by other evidence of
       legislative intent. Calle, 125 Wn.2d at 778.
               Third, if applicable, the merger doctrine is another aid in
       determining legislative intent, even when two crimes have formally
       different elements. Under the merger doctrine, when the degree of
       one offense is raised by conduct separately criminalized by the
       legislature, we presume the legislature intended to punish both
       offenses through a greater sentence for the greater crime. [State v.
       Vladovic. 99 Wn.2d [413,] 419[, 662 P.2d 853 (1983)].
              Finally, even if on an abstract level two convictions appear to

                                         -6-
No. 69754-4-1/7



      be for the same offense or for charges that would merge, if there is
      an independent purpose or effect to each, they may be punished as
      separate offenses. State v. Frohs. 83 Wn. App. 803, 807, 924 P.2d
      384 (1996) (citing State v. Johnson, 92 Wn.2d 671, 680, 600 P.2d
       1249(1979))."

Esparza, 135 Wn. App. at 59-61 (quoting Freeman. 153 Wn.2d at 771-73).

                                          A


       Neither the statute for robbery in the first degree nor the statute for assault

in the second degree explicitly addresses whether separate punishments may be

imposed for each offense. Compare RCW 9A.56.200 (robbery in the first

degree), wjth RCW 9A.36.021 (assault in the second degree). Moreover, neither
party directs our attention to any othersource ofexplicit or implicit legislative
intent on this issue. CJ\ Freeman, 153 Wn.2d at 776 (with respect to robbery in

the first degree and assault in the second degree, no such evidence of legislative
intent). Therefore, we must next apply the Blockburger test.

                                          B


       Application ofthe Blockburger test indicates that the offenses for which
Dunn was convicted are not the same for constitutional double jeopardy

purposes. "Under Blockburger. 'where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires

proof of a fact which the other does not.'" State v. Nvsta. 168 Wn. App. 30, 45,
275 P.3d 1162 (2012) (quoting Blockburger. 284 U.S. at 304), review denied. 177
Wn.2d 1008 (2013). "'If there is an element in each offense which is not included
in the other, and proof of one offense would not necessarily also prove the other,

                                         -7-
No. 69754-4-1/8



the offenses are not constitutionally the same and the double jeopardy clause

does not prevent convictions for both offenses.'" Nvsta. 168 Wn. at 46 (quoting

Vladovic. 99 Wn.2d at 423). Accordingly, "it is not enough merely to 'compare

the statutory elements at their most abstract level,'" "[w]e are to consider the

elements of the crimes both as charged and as proved." Nvsta. 168 Wn. App. at

47 (quoting Orange. 152 Wn.2d at 818).

        Dunn was charged with and convicted of robbery in the first degree and

assault in the second degree. To establish robbery in the first degree, as the jury

was instructed, required the jury to find that Dunn took property from Cassidy.6
To establish assault in the second degree, however, did not require the jury to

find that Dunn took property from Cassidy.7 What assault in the second degree

did require, as the jury was instructed, was for the jury to find that Dunn shot
Cassidy.8 Yet, robbery in the first degree did not require the jury to find that


        6The jury was instructed, in pertinent part, as follows:
                 To convict the defendant of the crime of robbery in the first degree, as
        charged in count I, each ofthe following six elements ofthe crime must be
        proved beyond a reasonable doubt:
                 (1) That on or about the 16th ofJuly 2011, the defendant unlawfully took
        personal property from the person of another.
Jury Instruction 6.
        7The jury was instructed, in pertinent part, as follows:
                 To convict the defendant of the crime of assault in the second degree, as
        charged in Count II, each ofthefollowing two elements ofthe crime must be
        proved beyond a reasonable doubt:
                 (1) That on or about the 16th of Jury, 2011, the defendant:
                       (a) intentionally assaulted Shanon Cassidy and thereby recklessly
                           inflicted substantial bodily harm; or
                       (b) assaulted Shanon Cassidy with a deadly weapon; and
                 (2) That this act occurred in the State of Washington.
Jury Instruction 16.
        8The jury was instructed, in pertinent part, as follows:
                An assault is an intentional touching or striking or shooting of another
         person, with unlawful force, that is harmful oroffensive regardless ofwhether any
         physical injury is done tothe person. Atouching or striking orshooting is

                                                  -8-
No. 69754-4-1/9



Dunn shot Cassidy.9 Whether comparing the statutory elements of each offense

or examining the facts used to prove them, it is clear that each offense required

the jury to find an additional element—as well as the facts supporting each

element—that the other did not. Accordingly, we presume that the offenses for

which Dunn was convicted are not the same for constitutional double jeopardy

purposes. Calle, 125 Wn.2d at 778.

       The result of the Blockburger test we reach here "creates a rebuttable

presumption that the offenses are not the same." In re Pers. Restraint of Francis.
170 Wn.2d 517, 524 n.4, 242 P.3d 866 (2010). Yet, "the merger doctrine can

rebut this presumption." Francis, 170 Wn.2d at 524 n.4.

                                                 C


        In this case, however, application of the merger doctrine does not rebut

the presumption that the offenses are not the same. Our Supreme Court has
explained that the merger doctrine is an additional means of ascertaining
legislative intent with respect to whether separate punishments are authorized.
        We reaffirm our holdings that the merger doctrine is a rule of
        statutory construction which only applies where the Legislature has
        clearly indicated that in order to prove a particular degree ofcrime
        (e.g.. first degree rape) the State must prove not only that a
        defendant committed that crime (a&, rape) but that the crime was
        accompanied by an act which is defined as a crime elsewhere in
        the criminal statutes (ag,, assault or kidnapping).

        offensive if the touching or striking or shooting would offend an ordinary person
        who is not unduly sensitive.
Jury Instruction 17.
        9The jury was instructed, in pertinent part, as follows:
              Aperson commits the crime ofrobbery in the first degree when in the
        commission ofa robbery he or she is armed with a deadly weapon or displays
        what appears to be a firearm or other deadly weapon.
Jury Instruction 8.
No. 69754-4-1/10




Vladovic. 99 Wn.2d at 420-21. Importantly, application of the merger doctrine is

informed by the evidence of facts that the jury is required to find in order to

convict. See State v. Kier. 164 Wn.2d 798, 806, 194 P.3d 212 (2008); Freeman,

153 Wn.2d at 778. Although Washington courts have previously held that

convictions for robbery in the first degree and assault in the second degree

merge, those cases are distinguishable from the facts of this case in that, in order

for the jury in those cases to convict the defendants of robbery in the first degree,

it was necessary for the jury to convict the defendants of assault in the second

degree. See Kier, 164 Wn.2d at 806; Freeman, 153 Wn.2d at 778.
        Here, it was not necessary for the jury first to convict Dunn of assault in

the second degree in order to convict him of robbery in the first degree. This is
so because the jury was instructed that the assault charge was predicated only
on an actual battery.™ To convict Dunn of robbery in the first degree, however,

the jury did not need to find that an actual battery occurred—it only had to find
that Dunn was armed with or displayed a deadly weapon.11 Thus, the State's

proof of robbery in the first degree was complete upon the introduction of
evidence that Dunn had wielded a firearm and taken Cassidy's wallet. This

evidence, however, as the jury was instructed, did not establish that Dunn had
committed assault in the second degree. The facts that led the jury to convict


        10 "An assault is an intentional touching or striking or shooting of another person." Jury
Instruction 17.
        11 The jury was instructed, in pertinent part, as follows: "A person commits the crime of
robbery in the first degree when in the commission of a robbery he or she is armed with a deadly
weapon or displays what appears to be a firearm or other deadly weapon." Jury Instruction 8.

                                               -10-
No. 69754-4-1/11



Dunn of assault in the second degree were not necessary to convict him of

robbery in the first degree. Thus, the facts necessary to the assault in the

second degree charge did not elevate the robbery to robbery in the first degree.

        Esparza reinforces our analysis. In Esparza. we declined to merge an

attempted robbery in the first degree charge and an assault in the second degree

charge after the defendant tried to rob a jewelry store.12 135 Wn. App. at 57-58.
In concluding that there was no double jeopardy violation, we noted that the
State had to prove only that the defendant was armed with or displayed a deadly
weapon in order to prove the attempted robbery in the first degree. Esparza. 135
Wn. App. at 66. We then held that,

        [s]ince it was unnecessary under the facts of this case for the State
        to prove that [the defendant] engaged in conduct amounting to
        second degree assault in order to elevate his robbery conviction
        and because the State did prove conduct not amounting to second
        degree assault that elevated [the defendant's] attempted robbery
        conviction, the merger doctrine does not prohibit [the defendant's]
        conviction for both attempted first degree robbery and second
        degree assault.

Esparza, 135 Wn. App. at 66. Just as in Esparza, here, the jury was not required
to find that Dunn committed assault in the second degree in order to elevate the

robbery to robbery in the first degree.13 Accordingly, the offenses do not
merge.14 We are satisfied that Dunn's convictions do not violate the prohibition

         12 Although Esparza involved attempted robbery in the first degree, its reasoning applies
with equal force to the facts here.
         13 However, as instructed, to convict Dunn ofassault in the second degree, the jury was
required to find an actual battery—by shooting—of Cassidy. This was not necessary to convict
 Dunn of robbery in the first degree.
         14 Because neither the Blockburqer test nor a merger analysis indicates that the two
convictions constitute double jeopardy, we need not consider whether there was "an independent
 purpose ... to each." Freeman, 153 Wn.2d at 773.

                                               -11 -
No. 69754-4-1/12



on double jeopardy.

                                          Ill


       Dunn next contends that his right to a trial by a fair and impartial jury was

violated. This is so, he avers, because the trial court coerced the jury into

reaching a guilty verdict. His contention is unavailing.

       A criminal defendant has a right to a trial before an impartial jury. U.S.

Const, amend. VI; Wash. Const, art. I §§ 21, 22. "The right to a jury trial

includes the right to have each juror reach his or her own verdict 'uninfluenced by
factors outside the evidence, the court's proper instructions, and the arguments

of counsel.'" State v. Goldberg, 149 Wn.2d 888, 892-93, 72 P.3d 1083 (2003)

(quoting State v. Boogaard. 90 Wn.2d 733, 736, 585 P.2d 789 (1978)), overruled
on other grounds by State v. Nunez, 174 Wn.2d 707, 285 P.3d 21 (2012). It

follows that a trial court may not coerce a jury to reach a verdict. State v. Jones,
97 Wn.2d 159, 163-65, 641 P.2d 708 (1982); Boogaard, 90 Wn.2d at 736-37.
Criminal Rule (CrR) 6.15 guards against the specter ofcoercion by prohibiting
the trial court from instructing the jury, once deliberations have commenced, "in
such a way as to suggest the need for agreement, the consequences of no
agreement, or the length of time a jury will be required to deliberate." CrR
6.15(f)(2).

       "To prevail on a claim of improper judicial interference with the verdict, a
defendant 'must establish a reasonably substantial possibility that the verdict was

 improperly influenced by the trial court's intervention.'" State v. Ford, 171 Wn.2d
 185, 188-89, 250 P.3d 97 (2011) (quoting State v. Watkins, 99 Wn.2d 166, 178,
                                         -12-
No. 69754-4-1/13



660P.2d 1117(1983)).

      Judicial coercion must include an instance of actual conduct by the
      trial judge during jury deliberations that could influence the jury's
      decision. To make such a claim, a defendant must first make a
      threshold showing that the jury was still within its deliberative
      process. Second, though related, the defendant must affirmatively
      show that the jury was at that point still undecided. Third, the
      defendant must show judicial action designed to force or compel a
      decision, and fourth, the impropriety of that conduct.

Ford, 171 Wn.2dat193.

      A criminal defendant has a right to have his case completed by the

particular jury impaneled and sworn to try his cause. Jones, 97 Wn.2d at 162-63.
If a court discharges a jury without the defendant's consent, double jeopardy
principles will bar retrial unless the "'discharge was necessary in the interest of
the proper administration ofpublic justice.'" Jones, 97 Wn.2d at 162-63 (quoting
State v. Connors, 59 Wn.2d 879, 883, 371 P.2d 541 (1962)). A deadlocked jury

constitutes a manifest necessity permitting the trial courtto discharge the jury

and declare a mistrial. State ex rel. Charles v. Bellingham Mun. Court. 26 Wn.

App. 144, 147-48, 612 P.2d 427 (1980) (citing Connors, 59 Wn.2d at 883).
       "[W]e review the trial court's determination of whether a deadlock exists
with great deference." State v. Taylor. 109 Wn.2d 438, 443, 745 P.2d 510
(1987). disapproved of on other grounds by State v. Labanowski. 117Wn.2d

405, 816 P.2d 26 (1991). "Atrial judge has broad discretion in deciding a jury is
permanently divided," the reason for which "is that he or she is in the best
position to determine whether a jury's stalemate is only a temporary step in the
deliberation process orthe unalterable conclusion to that process." Taylor, 109

                                          13
No. 69754-4-1/14



Wn.2dat442.

           The principal factor to be considered in assessing whether a
      nonunamimous jury is genuinely deadlocked is "the length of time
      the jury had been deliberating in light of the length of the trial and
      the volume and complexity of the evidence." Jones, at 164; State
      v. Boogaard. 90 Wn.2d 733, 739, 585 P.2d 789 (1978). The judge
      also may consider any progress in the deliberations. Jones, at 164.
      The jury's own assessment that it is deadlocked, while helpful, is
      not itself sufficient ground for declaring a mistrial. See United
      States v. Ross. 626 F.2d 77, 81 (9th Cir. 1980). The decision to
      discharge the jury should be made only when it "appears to the trial
      judge that there is no reasonable probability of the jury arriving at
      an agreement even if given more time." State ex rel. Charles v.
      Bellingham Mun. Court, 26 Wn. App. 144, 148, 612 P.2d 427
      (1980).

Taylor. 109 Wn.2d at 443.

      Dunn contends that the trial court violated CrR 6.15(f)(2). We disagree.

      The trial court asked the presiding juror, "Is there a reasonable probability
of the jury reaching a unanimous verdict within a reasonable time[?]" The
presiding juror responded, "No." The court then asked, "Is there any member of
the jury that disagrees with that statement. If so, please raise your hand." One
of the jurors raised her hand.

       These questions did not "suggest the need for agreement, the
consequences of no agreement, orthe length of time a jury will be required to
deliberate." CrR 6.15(f)(2). Moreover, they were not designed to "force or
compel a decision." Ford, 171 Wn.2d at 193. Instead, they were neutral
questions calculated to determine whether the jury considered itself to be
deadlocked. The trial court did not violate the rule.

       Moreover, the trial court did not abuse its discretion by concluding that the


                                          14
No. 69754-4-1/15



jury was not deadlocked.

       The fact that the jurors were in disagreement as to whether they were

deadlocked supports the trial court's decision to allow for additional deliberations.

There was no abuse of discretion in so deciding.

       Similarly, the trial court did not err by requiring the jury to wait for the ill

juror to recover sufficiently so as to be able to resume deliberating. A half-day
period of repose is hardly an unknown phenomenon in jury trials. The trial judge

acted wisely in keeping the jury together in order for the ill juror to have sufficient

time to recover and complete the juror's service. There was no abuse of

discretion in affording the ill juror that opportunity. Similarly, there was no abuse

of discretion in preserving to Dunn his right to a decision at trial on the first

occasion on which he was put in constitutional jeopardy.15

       Affirmed.                                    >.




We concur:




        15 In his statement of additional grounds for review, Dunn contends that the trial court
erred by not finding that the jury was deadlocked and thereby coerced the jury to reach a verdict.
In view of our analysis above, we reject his contention.

                                               -15-
