                                 NO. COA13-1434

                      NORTH CAROLINA COURT OF APPEALS

                              Filed: 1 July 2014


STATE OF NORTH CAROLINA

    v.                                    Wake County
                                          No. 12 CRS 222413
ERIC DONOVAN MASSENBURG



    Appeal by defendant from judgment entered 10 May 2013 by

Judge G. Wayne Abernathy in Wake County Superior Court.                  Heard

in the Court of Appeals 22 April 2014.


    Attorney General Roy Cooper, by Special                  Deputy   Attorney
    General Victoria L. Voight, for the State.

    Appellate Defender Staples Hughes, by Assistant Appellate
    Defender Jillian C. Katz, for defendant-appellant.


    BRYANT, Judge.


    Where the trial court’s Allen charge to the jury was in

substantial compliance with N.C. Gen. Stat. ' 15A-1235, there

was no coercion of the jury verdict.            Where the sentence imposed

was within the presumptive range, the trial court did not abuse

its discretion by imposing an intermediate sanction of special

probation.

    On     10    December   2012,   defendant    Eric   D.    Massenburg   was

indicted    on    charges   of   felonious   breaking    or    entering    and
                                             -2-
assault       inflicting      serious       bodily      injury.         The     matter    was

brought to trial during the 7 May 2013 session in Wake County

Superior       Court,       the     Honorable      G.        Wayne     Abernathy,        Judge

presiding.

       The evidence presented at trial tended to show that on the

evening of 23 September 2012, defendant accompanied his mother

Henrietta Massenburg to the home of defendant’s ex-sister-in-law

Patricia       Massenburg.            Then,     defendant            left.          Patricia’s

boyfriend Joe Perry               was at the residence.                 Henrietta called

defendant after Joe began cursing at her and ordering her to

leave.      When defendant returned to the residence, Joe brandished

a butcher’s knife.           Though testimony differed as to whether Joe

put the knife down prior to the time defendant began hitting

him,    the    testimony      was    consistent         in    showing        that    defendant

punched Joe repeatedly.               Due to defendant’s assault, Joe spent

three days in the hospital, lost several of his teeth, and had a

plate inserted into his jaw.

       At     the   close    of    the     evidence,      the    charge       of     felonious

breaking and entering was dismissed but the State was allowed to

proceed on the charge of misdemeanor breaking or entering.                                 The

trial    court      instructed       the    jury     on      misdemeanor       breaking    or

entering and assault inflicting serious bodily injury.                                At five
                                      -3-
o’clock, after a few hours of deliberation, the jury advised the

court that it had reached a unanimous verdict on the charge of

breaking    or   entering    but    could         not   agree    on     the   assault

inflicting serious bodily injury charge and did not feel they

would   reach    a   unanimous   verdict         with   more    time.     The    court

emphasized to the jury that it was their duty to reach a verdict

if   they   could      do   so     without        surrendering        their     honest

convictions, then instructed the jury that deliberations would

resume the following morning.

     The next day, the jury returned a verdict of guilty on the

charge of assault inflicting serious bodily injury and a verdict

of not guilty on the charge of misdemeanor breaking or entering.

Defendant appeals.

                      ___________________________________

     On appeal, defendant raises the following two arguments:

the trial court (I) erred in failing to properly instruct the

jury; and (II) abused its discretion in sentencing defendant to

an active term of imprisonment.

                                             I

     Defendant argues that after receiving notice that the jury

was deadlocked, the trial court erred in failing to properly

instruct the jury of its duty to make reasonable efforts to
                                -4-
reach a unanimous verdict pursuant to General Statutes, section

15A-1235, also known as an Allen charge,1 and as a result, the

jury’s guilty verdict was coerced.    We disagree.

       Initially, we note that defendant failed to preserve this

issue for review as he failed to object to the trial court’s

jury instruction that he now challenges.      See N.C. R. App. P.

10(a)(2) (2014) (objection required to allow appeal of a jury

charge); see also State v. Storm, ___ N.C. App. ___, ___, 743

S.E.2d 713, 716 (2013) (Where the defendant failed to object to

the trial court’s instruction and did not object after the trial

court’s instruction, the challenge was not properly preserved.).

Therefore, we review this matter for plain error.2    See State v.



1
  Allen v. United States, 164 U.S. 492, 501—02 (1896) (finding no
error in trial court’s reinstruction to jury where jury could
not reach a unanimous verdict. The Supreme Court reasoned that
“[w]hile, undoubtedly, the verdict of the jury should represent
the opinion of each individual juror, it by no means follows
that opinions may not be changed by conference in the jury room.
The very object of the jury system is to secure unanimity by a
comparison of views and by arguments among the jurors
themselves. It certainly cannot be the law that each juror
should not listen with deference to the arguments and with a
distrust of his own judgment, if he finds a large majority of
the jury taking a different view of the case from what he does
himself. It cannot be that each juror should go to the jury room
with a blind determination that the verdict shall represent his
opinion of the case at that moment; or that he should close his
ears to the arguments of men who are equally honest and
intelligent as himself.”).
2
    Defendant cites to State v. May, ___ N.C. App. ___, 749 S.E.2d
                                      -5-
Williams, 315 N.C. 310, 328, 338 S.E.2d 75, 86 (1986) (reviewing

the   defendant’s   challenge    to   the     trial       court’s    Allen     charge

based on a failure to comply with General Statutes, section 15A-

1235 for plain error where the defendant failed to preserve his

argument at trial).

      “[P]lain error review in North Carolina is normally limited

to instructional and evidentiary error.”              State v. Lawrence, 365

N.C. 506, 516, 723 S.E.2d 326, 333 (2012) (citation omitted);

see   generally   State   v.   Conley,      ___    N.C.    App.     ___,    ___,   724

S.E.2d 163, 169, disc. review denied, 366 N.C. 238, 731 S.E.2d

413 (2012) (“Where trial counsel fails to object to the trial

court's instructions in response to a question from the jury

seeking clarification, we review for plain error.”).                       “Preserved

legal error is reviewed under the harmless error standard of

review. Unpreserved error in criminal cases, on the other hand,

is reviewed only for plain error.”                Lawrence, 365 N.C. at 512,

723 S.E.2d at 330 (citations omitted).

           For error to constitute plain error, a
           defendant    must    demonstrate   that    a
           fundamental error occurred at trial. To show
           that an error was fundamental, a defendant


483 (2013), for the proposition that this issue is subject to
harmless error analysis as opposed to plain error. We note,
however, that our Supreme Court has granted a stay as to May.
We therefore do not use it as a basis for our standard of review
or analysis of this issue.
                               -6-
          must    establish    prejudice—that,  after
          examination of the entire record, the error
          had a probable impact on the jury's finding
          that the defendant was guilty.

Id. at 518, 723 S.E.2d at 334 (citations omitted).

    Pursuant to North Carolina General Statutes, section 15A-

1235, “[i]f 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(c)

(2013).

          (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
                                     -7-
                 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.

Id. § 15A-1235 (a), (b).

    Defendant     contends    that   the   trial     court’s   Allen   charge

failed to instruct the jury in accordance with                 section 15A-

1235(b)(3), “a juror should not hesitate to reexamine his own

views and change his opinion if convinced it is erroneous[,]”

and because of this omission, he is entitled to a new trial.               We

disagree.

    In Williams, 315 N.C. 310, 338 S.E.2d 75, the defendant

argued that the trial court’s Allen charge failed to comply with

General Statutes, section 15A-1235(b)(3) and (4).                 The Court

reasoned that “whenever the trial judge gives the jury any of

the instructions authorized by N.C.G.S. § 15A–1235(b), whether

given   before   the   jury   initially    retires    for   deliberation   or

after the trial judge concludes that the jury is deadlocked, he

must give all of them.”       Id. at 327, 338 S.E.2d at 85.

            Since the trial judge gave the instruction
            after forming the opinion that the jury was
            deadlocked, he committed error when he gave
            the instructions set out in N.C.G.S. § 15A–
            1235(b)(1) and (2), but failed to give the
                                -8-
         instructions set out     in   N.C.G.S.   §   15A–
         1235(b)(3) and (4).

         This error does not, however, automatically
         entitle the defendant to a new trial.

Id. at 327, 338 S.E.2d at 86.    In State v. Fernandez, 346 N.C.

1, 484 S.E.2d 350 (1997), our Supreme Court reasoned as follows:

         [t]he trial court's instructions did not
         suggest that jurors should surrender their
         beliefs or include extraneous references to
         the expense and inconvenience of another
         trial, as has been found erroneous by this
         Court.

         Moreover, by comparing the trial court's
         instructions with those contained in Section
         15A–1235 above, it is clear that the trial
         court's instructions contained the substance
         of    the    statutory    instructions.    The
         instructions 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.

Id. at 22—23, 484 S.E.2d at 363—64 (citations omitted).

    Here, the trial court gave the following charge:

         THE COURT:     Ladies and gentlemen, I want
         to emphasize to you 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
         reconcile   your   differences   if you   can
         without     surrendering     any    conscious
         convictions. No juror should surrender his
         honest convictions as to the weight or the
         effect of the evidence solely because the
         opinion of a fellow juror or for the mere
                                        -9-
            purpose of returning a verdict. Each of you
            must decide this case for yourself with
            impartial consideration [of] the evidence.
            Y’all have a duty to consult with one
            another and to deliberate with the view of
            reaching an agreement if it can be done
            without injury to your personal judgment.

    We acknowledge that the trial court’s charge fails to state

the words of section 15A-1235(b)(3) verbatim.                   However, it is

clear that the trial court's instructions contain the substance

of General Statutes, section 15A-1235(b).                 Moreover, we again

note that based on Fernandez, the substance of the instruction

“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.”         Id. at 23, 484 S.E.2d at 364; see also

State v. Gettys, ___ N.C. App. ___, ___, 724 S.E.2d 579, 586

(2012)    (reviewing    for     plain   error   the     trial     court’s    Allen

charge).    Accordingly, we overrule defendant’s argument.

                                        II

    Next,     defendant       argues     the    trial     court     abused      its

discretion and violated the Equal Protection Clause of both the

United States and North Carolina constitutions by choosing to

impose upon defendant a term of special probation of 135 days in

the Division of Adult Correction as an intermediate sanction.
                                           -10-
Specifically, defendant argues the trial court chose a sentence

with    active    time    as    opposed       to    regular      probation    because

defendant would “never make [enough] money working . . . to pay

back taxpayers for the cost of Medicaid.”                  We disagree.

       “In criminal trials a State can no more discriminate on

account of poverty than on account of religion, race, or color.”

Griffin    v.    Illinois,     351    U.S.    12,    17,   100   L.    Ed.   891,    898

(1956).        “If the record discloses that the court considered

irrelevant and improper matter in determining the severity of

the sentence, the presumption of regularity is overcome, and the

sentence    is    in   violation      of    defendant's     rights.”         State    v.

Johnson, 320 N.C. 746, 753, 360 S.E.2d 676, 681 (1987) (citation

and quotation omitted).               “‘A    judgment will not be disturbed

because of sentencing procedures unless there is a showing of

abuse     of     discretion,         procedural       conduct      prejudicial       to

defendant, circumstances which manifest inherent unfairness and

injustice, or conduct which offends the public sense of fair

play.’”    State v. Cameron, 83 N.C. App. 69, 76, 349 S.E.2d 327,

332 (1986) (quoting State v. Pope, 257 N.C. 326, 335, 126 S.E.2d

126, 133 (1962)).

       Here,     after   hearing       from        defendant     who    requested     a

mitigated-range sentence of 11 to 23 months with a short active
                                        -11-
sentence,        and    the   State’s   request    of    a    presumptive    range

sentence, the trial court imposed a presumptive range sentence

of   19—32       months.       The   sentence     contained     an   intermediate

sanction     –    a    term   of   special   probation   of   135    days   in   the

Division of Adult Correction.                The trial court then gave the

following basis for the sentence imposed:

             THE COURT: . . . Well, I noticed that the
             Defendant has three prior breakings and
             possession of schedule six and possession of
             a firearm with obliterated serial number.
             That, of course, is of concern. What bothers
             me is that he has probation violations six
             times for the same offense. In a perfect
             world, I would leave him on probation, make
             him pay back the taxpayers who probably paid
             $50-$75,000 in Medicaid damage he did to
             this   man's   head.  But    he   won't  make
             probation. He won't make it in the sense
             he'll never make the money working at
             McDonald's to pay back the taxpayers for the
             cost of Medicaid.
                  It does appear to me that the force was
             clearly excessive in this case . . . . But
             regardless, I think the jury has spoken. I
             believe they've spoken correctly.
                  Stand up, please,      [defendant]. The
             lawyers are right, the range of sentences
             provided to me to choose from by the
             legislature range from a minimum of 11
             months to a maximum of about 32 months in
             the presumptive range, and they also allow
             for suspension. I want you to realize you
             sentenced the victim in this case to a
             lifetime of a plate in his jaw and only half
             the teeth in his head, so he doesn't ever
             get over this.
                  How much time is he doing in federal?
             . . .
                                     -12-


            [Defense counsel]: He's got 24 months,
            additional months, he's pulling everyday.

            THE    COURT:    Well,     I'll    take  into
            consideration the fact he's going to be in
            prison for 24 months in the federal system
            as   a   result  of    this   violation, this
            conviction. Rather than your straight active
            sentence which was my inclination, which I
            would do if he did not have the 24 months
            facing him, which he will serve.

            . . .

            I was going to sentence him at the bottom of
            the presumptive and make it all active. What
            I think I'm going to do is move -- that was
            my thought process, maybe move to the top of
            the   presumptive   and    give   him   some
            suspension.

            In this case, madam clerk, the Defendant
            admits that he has five points for felony
            sentencing purposes, which makes him a level
            two. This is a class F felony. It is the
            judgment of the Court that the Defendant be
            imprisoned  in   the  [Division]   of  Adult
            Corrections for Male Prisoners for a minimum
            of [19] months and a maximum of [32] months;
            however, in view of the fact he is going to
            be in prison for 24 months in the federal
            system, the Court is going to suspend all
            but [four months and 15 days (135 days)],
            and he's placed on supervised probation for
            24 months on the condition that he have no
            contact with the victim or any witnesses for
            the State.

    It appears the trial court’s reference to a sentence of

probation    was    intended    as   consideration     of   an   exceptional

circumstance   –    “[i]n   a   perfect   world,   I   would   leave   him   on
                                               -13-
probation, make him pay back the taxpayers who probably paid

$50-$75,000 in Medicaid damage.”                         However, the trial court’s

sentence could be considered lenient by most accounts: Defendant

was a Level II offender convicted of a violent Class F felony,

sentenced     in    the        presumptive        range,        but     given      a    special

probationary       sentence         of   135     days    in     the   Division         of   Adult

Correction, as opposed to a straight active sentence.                                  Defendant

was also serving or about to serve an active sentence in the

federal system.       On this record, defendant cannot show that the

sentence    ordered       by    the      court    was     a    discriminatory          sentence

predicated    on    poverty.             The     trial    court       did    not     abuse   its

discretion,        engage       in       procedural           conduct       prejudicial       to

defendant,    operate          in    circumstances            manifesting       an     inherent

unfairness and injustice, or engage in conduct offensive to a

sense of fair play.            See Cameron, 83 N.C. App. at 76, 349 S.E.2d

at 332.    Defendant’s argument is overruled.

    No error.

    Judges HUNTER, Robert C., and STEELMAN concur.
