(concurring and dissenting):
1 38 I agree that there is nothing about the modified Allen instruction, see Allen v. United States, 164 U.S. 492, 501, 17 S.Ct. 154, 41 L.Ed. 528 (1896), that is per se coercive. I also agree that use of the ABA Model Instruction should be encouraged, as it will give trial courts a "safe harbor" when they are faced with a deadlocked jury. However, I cannot agree that the instruction given here was "coercive under the specific cireum-stances of the case." See State v. Lactod, 761 P.2d 28, 80 (Utah Ct.App.1988) (citing Lowenfield v. Phelps, 484 U.S. 281, 237, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988)).
€189 After deliberating for over three hours, the jurors informed the trial court that they had reached "a unanimous decision on Count II [driving under the influence]. However for Count I [possession or use of a controlled substance,] we are ... undecided and will not change." The trial court brought the jurors back into the courtroom and gave them the modified Allen instruction. The court knew that the jurors were divided 7-1 on Count I, but did not know whether the majority was in favor of convietion or acquittal. The trial court therefore proceeded to evenbhandedly address those who were for conviction and those who were for acquittal, as follows:1
[5] If a substantial majority of your number are for a conviction, each dissenting juror ought to consider whether a doubt in his or her own mind is a reasonable one, since it appears to make no effective impression upon the minds of so many equally conscientious fellow jurors, who bear the same responsibility, serve under the same oath, and have heard the same evidence, with, we may assume, the same attention and equal desire to arrive at the truth.
[6] On the other hand, if a majority or even a lesser number of you are for acquittal, the other jwrors ought to seriously ask themselves again, and most thoughtfully, whether they do not have a reason to *109doubt the correction of a judgment, which is not shared by several of their fellow jurors, and whether they should distrust the weight and sufficiency of evidence which fails to convince several of their fellow jurors beyond a reasonable doubt.
(Emphasis added.)
«[ 40 While neither paragraph is a model of clarity, I believe that paragraph six adequately counterbalances the provisions of paragraph five such that all of the jurors, both those for and those against conviction, were asked to reevaluate their positions. The trial court then emphasized that no juror should surrender his or her conscientiously-held beliefs about the case:
[7] You are not partisans. You are judges; judges of the facts. Your sole interest here is to seek the truth from the evidence in the case. Remember at all times that no juror is expected to yield a conscientious conviction he or she may have as to the weight or effect of the evidence; but remember also that after full deliberation and consideration of the evidence in the case, if is your duty to agree upon a verdict if you can do so without surrendering your conscientious conviction.
(Emphasis added.)
[41 Reversal here is not warranted under precedent of the United States Supreme Court or under prior precedent of this state. The trial court in this case did not coerce any of the jurors to surrender their conscientious convictions in order to reach a verdict. I would therefore affirm Harry's convictions.
. I use the same paragraph numbering used by the majority to highlight the most important parts of the instruction.