STATE v. CLARK (2021)

Defendant was convicted by jury verdict of three counts of first-degree sexual abuse and one count each of first-degree unlawful sexual penetration and attempted sodomy. On appeal, defendant argues that the trial court erred by allowing the forensic interviewer to testify under OEC 702 as an expert with insufficient foundation to testify as an expert on issues of memory. We ultimately reverse and remand on another basis, and we do not reach this argument. Defendant's other argument is that the trial court erred in instructing the jury that it need not reach unanimous verdicts; he contends that, because the erroneous jury instruction constituted a structural error, his conviction must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). While the Supreme Court rejected the structural error argument in State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020), our inquiry does not end there.

In this case, defendant requested in writing and several times at trial that jury instructions requiring unanimity be provided. The trial court declined to do so over defendant's objection. As we explained in State v. Scott, 309 Or. App. 615, 619, 483 P.3d 701 (2021), the combination of request for unanimous jury instruction and objection at trial was sufficient to preserve the argument for appeal.¹ We further explained that when the unanimous verdict instruction issue has been preserved, it is then incumbent on the party—in this case the state—receiving the benefit of the constitutional error to demonstrate harmlessness beyond a reasonable doubt. Id. at 620-21, 483 P.3d 701 (applying the federal harmlessness analysis because the erroneous jury instruction violated the Sixth Amendment). Because in this case the jury was not polled, the state cannot demonstrate that the erroneous instruction was harmless beyond a reasonable doubt, and therefore defendant is entitled to relief. Id. at 621, 483 P.3d 701.

Reversed and remanded.

FOOTNOTES

1.   In this case, the state argues that defendant failed to preserve his claim regarding the erroneous jury instruction because he did not request a jury poll. While it is true the Sixth Amendment prohibits acceptance of or receiving nonunanimous guilty jury verdicts, State v. Ulery, 366 Or. 500, 501, 503, 464 P.3d 1123 (2020), the Sixth Amendment also prohibits providing a jury instruction allowing nonunanimous verdicts. Flores Ramos, 367 Or. at 299, 478 P.3d 515. As in Scott, the error in this case was not in accepting a nonunanimous verdict, because without a poll, it is impossible to ascertain whether the verdict was unanimous; rather the error lies in providing the instruction allowing nonunanimous verdicts.

PER CURIAM