STATE v. DAMPER (2021)

Defendant appeals a judgment of conviction for two counts of promoting prostitution, ORS 167.012. He assigns error to the trial court's (1) instruction to the jury that it could return nonunanimous verdicts, (2) receipt of a nonunanimous verdict for Count 1, and (3) failure to sua sponte merge the verdicts on Counts 1 and 2 into a single conviction. We reject defendant's additional assignments as noted below.¹ For the reasons explained below, we reverse defendant's conviction on Count 1 and otherwise affirm.

The state charged defendant with two counts of promoting prostitution, ORS 167.012. The trial court instructed the jury that it could reach a nonunanimous verdict on both counts: “This being a criminal case, ten or more jurors must agree on your verdict.” After the jury deliberated, the trial court received a nonunanimous guilty verdict on Count 1, based on a 10-2 vote, and a unanimous verdict on Count 2. Defendant later appealed, arguing among other points, that providing a nonunanimous jury instruction and accepting a nonunanimous verdict constitute either structural errors that this court must correct, or alternatively, plain error that we should exercise our discretion to correct.

While defendant's appeal was pending, the Supreme Court of the United States issued its decision in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). In Ramos, the Court concluded that a trial court's entry of judgments based on nonunanimous jury verdicts violates a defendant's right to a jury trial under the Sixth Amendment, and that the “Sixth Amendment's unanimity requirement” is “incorporated against the States under the Fourteenth Amendment.” Id., 590 U.S. at ––––, 140 S. Ct. at 1397.

Following the United States Supreme Court's decision in Ramos, the Oregon Supreme Court explained that a nonunanimous jury instruction is not a structural error that categorically requires reversal, State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020), and that where a jury poll reveals that a verdict was unanimous for each count in question, the erroneous instruction is “harmless beyond a reasonable doubt,” State v. Kincheloe, 367 Or. 335, 338, 478 P.3d 507 (2020) (citing Flores Ramos, 367 Or. at 320, 478 P.3d 515). It also explained that “the receipt of a nonunanimous guilty verdict is the type of plain error that an appellate court should exercise its discretion to review, and it is an error that cannot be found harmless.” Kincheloe, 367 Or. at 339, 478 P.3d 507 (citing State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020)).

Here, defendant contends that he is entitled to reversal of his conviction on Count 2 because the trial court issued a nonunanimous jury instruction. That contention is unavailing; the erroneous instruction was rendered harmless by the unanimous verdict on Count 2, and we therefore reject that contention for the reasons set forth in Flores Ramos and Kincheloe.

As for defendant's conviction on Count 1, the state has filed a notice with this court in which it conceded that, under Ramos, the trial court plainly erred in accepting a nonunanimous verdict on Count 1, and that defendant is entitled to reversal and a new trial on Count 1. We agree and accept the state's concession and, for the reasons set forth in Kincheloe and Ulery, we exercise our discretion to correct the error.

Our disposition as to Count 1 obviates the need to address defendant's remaining assignment of error: that the trial court erred by failing to merge his guilty verdicts on Counts 1 and 2 into a single conviction. See, e.g., State v. Paye, 310 Or. App. 408, 417, 486 P.3d 808 (2021) (reversing convictions for promoting prostitution because guilty verdicts were not unanimous and concluding that reversal obviates the need to reach merger argument as to those convictions). Nevertheless, we briefly address merger within the context of promoting prostitution, ORS 167.012, because defendant faces the possibility of a retrial on Count 1, and the issue of merger may arise on remand if he is convicted again on that count. See State v. Merrill, 309 Or. App. 68, 71, 481 P.3d 441 (2021) (“Even when a disposition obviates the need to address an assignment of error, we may nevertheless address questions of law that may still be at issue after the case is remanded.”); State v. Bradley, 309 Or. App. 598, 602, 483 P.3d 717 (2021) (same).

In Paye, we examined how ORS 161.067—the “anti-merger” statute—operates within the context of promoting prostitution under ORS 167.012. 310 Or. App. at 417-29, 486 P.3d 808. We explained that, if the guilty verdicts for multiple counts of promoting prostitution involve (1) the same criminal episode, (2) the same statutory provision, (3) the same victim, and (4) the conduct underlying those counts is not separated by a “sufficient pause,” then those verdicts must merge. Id. at 417, 486 P.3d 808. We also explained that “the paragraphs of ORS 167.012(1) are the same statutory provision for purposes of [the anti-merger statute],” id. at 421, ––– P.3d ––––, and that “each count of promoting prostitution involves the same victim—the public,” id. at 428, 486 P.3d 808. Thus, in the instant case, if defendant is retried and reconvicted on remand, our decision in Paye would bear on any resulting merger issues.

Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Defendant also assigns error to the trial court's denial of his motion for judgment of acquittal on Count 1, and he also assigns error to the trial court's failure to deliver a jury-concurrence instruction, or alternatively, to require that the state elect a theory of guilt as to Count 2. We reject those assignments of error without written discussion.

TOOKEY, J.