Opinion
A171813
05-12-2021
STATE of Oregon, Plaintiff-Respondent, v. Juan PERALES, Jr., Defendant-Appellant.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
PER CURIAM
Defendant was convicted by jury verdict of first-degree sexual abuse, fourth-degree assault constituting domestic violence, strangulation, and menacing constituting domestic violence. On appeal, defendant argues that the trial court erred by failing to provide a "witness false in part" jury instruction, such as UCrJI 1029. 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, and 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 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. We further explained that when the unanimous verdict instruction issue has been preserved, it is then incumbent on the state, as the party 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.
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.
Reversed and remanded.