State v. Flores Ramos

                                      292

Argued and submitted August 18; decision of Court of Appeals affirmed in part
and reversed in part, judgment of circuit court affirmed in part and reversed in
       part, and case remanded to circuit court for further proceedings
                             December 24, 2020


                    STATE OF OREGON,
                   Respondent on Review,
                               v.
                 ISIDRO FLORES RAMOS,
                aka Santiago Flores Martinez,
                     Petitioner on Review.
          (CC 17CR30088) (CA A167187) (SC S067105)
                                   

    At defendant’s trial, and over his objection, the jury was instructed that it
could return nonunanimous guilty verdicts. The jury returned five guilty ver-
dicts, four of which were unanimous and one of which was nonunanimous. The
Court of Appeals affirmed defendant’s convictions. Held: (1) The jury instruction
permitting the jury to return nonunanimous verdicts violated defendant’s Sixth
Amendment rights under Ramos v. Louisiana, 

, 

, 

 (2020); (2) the instructional error was not a structural error; (3) the
erroneous instruction was harmless beyond a reasonable doubt as to the convic-
tions based on unanimous verdicts; (4) under State v. Ulery, 

, 

 (2020), defendant was entitled to reversal of the single conviction based on
a nonunanimous verdict.
    The decision of the Court of Appeals is affirmed in part and reversed in part.
The judgment of the circuit court is affirmed in part and reversed in part, and the
case is remanded to the circuit court for further proceedings.



    En Banc
    On review from the Court of Appeals.*
   Erik Blumenthal, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the brief were
Ernest G. Lannet, Chief Defender, and Joshua B. Crowther,
Deputy Public Defender.
   Christopher A. Perdue, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
______________
   * On appeal from Clackamas County Circuit Court, Douglas V. Van Dyk,
Judge. 

, 

 (2019).
Cite as 

 (2020)                               293

review. Also on the brief were Ellen F. Rosenblum, Attorney
General, Benjamin Gutman, Solicitor General, and Doug M.
Petrina, Assistant Attorney General.
    Scott Sell, Thomas, Coon, Newton & Frost, Portland,
filed the brief on behalf of amicus curiae Street Roots.
   Jonathan Zunkel-deCoursey, Schwabe, Williamson &
Wyatt, P.C., Portland, filed the brief on behalf of amicus
curiae Immigrant and Refugee Community Organization.
Also on the brief was Jeanice Chieng, Immigrant and
Refugee Community Organization, Portland.
   Cody Hoesly, Larkins Vacura Kayser LLP, Portland, filed
the brief on behalf of amici curiae NAACP Corvallis Branch
#1118, NAACP Eugene-Springfield Branch, #1119, NAACP
Portland Chapter 1120B, and NAACP Salem-Keizer Branch
#1166.
   Timothy Wright, Tonkon Torp LLP, Portland, filed the
brief for amicus curiae Don’t Shoot Portland. Also on the
brief was J. Ashlee Albies, Albies & Stark, Portland.
   Nathan R. Morales, Perkins Coie LLP, Portland, filed the
brief on behalf of amici curiae The Coalition of Communities
of Color and Latino Network. Also on the brief was Misha
Isaak.
   Aliza B. Kaplan filed the brief on behalf of amicus curiae
Criminal Justice Reform Clinic at Lewis & Clark Law
School. Also on the brief was Sarah Laidlaw.
   GARRETT, J.
   The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
294                                                 State v. Flores Ramos

           GARRETT, J.
         In this case, we again consider the effect of the
United States Supreme Court’s decision in Ramos v.
Louisiana, 

, 

, 

(2020), which held that the Sixth Amendment1 requires a
jury to be unanimous in order to convict a defendant of a
serious offense. We have held that Ramos requires rever-
sal of Oregon convictions based on nonunanimous jury ver-
dicts. State v. Ulery, 

, 

 (2020). This
case presents a different issue: After being instructed that
it could convict defendant by a vote of 10 to two, the jury
found defendant guilty of five crimes, four by unanimous
verdicts and one by a nonunanimous verdict. Under Ramos
and Ulery, the one conviction based on a nonunanimous
verdict must be reversed. The additional question that we
must answer in this case is whether the convictions based
on unanimous verdicts must also be reversed, because the
jury that returned them was instructed that it could con-
vict defendant without reaching unanimity. Although we
agree with defendant that instructing the jury that it could
convict him by a nonunanimous vote violated the Sixth
Amendment, we conclude that the error does not require
any of defendant’s unanimous convictions to be reversed.
                           I. BACKGROUND
A.    Legal Context
         We first clarify what we already have decided and
the limited scope of the issues to be decided in this case. In
Ramos, the Supreme Court held that the Sixth Amendment
requires that the jury be unanimous to convict a criminal
defendant of a serious offense and that that requirement
is binding on the states through the Due Process Clause
of the Fourteenth Amendment. 590 US at ___, 

. The rule announced in Ramos applies to all cases
now on appeal—regardless of whether the trial occurred
before or after Ramos. Griffith v. Kentucky, 

, 

, 

 (1987) (holding that new rules of
     1
       The Sixth Amendment to the United States Constitution provides that,
“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
public trial, by an impartial jury of the State and district wherein the crime shall
have been committed[.]”
Cite as 

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constitutional law apply to all cases still on direct appeal).
Before Ramos, in every felony case tried to a jury in Oregon,
a nonunanimous verdict of 10 votes out of 12 was sufficient
for a conviction of any offense other than murder, and juries
were so instructed. See Or Const, Art I, § 11 (“[I]n the cir-
cuit court ten members of the jury may render a verdict of
guilty or not guilty, save and except a verdict of guilty of
first degree murder, which shall be found only by a unani-
mous verdict, and not otherwise[.]”). In many of those cases,
the jury was polled, and the jury poll revealed that only 10
or 11 jurors agreed with the verdict on one or more counts of
conviction.
         Ramos makes clear that all convictions for seri-
ous offenses that were based on nonunanimous verdicts
involved constitutional error—a violation of the defendant’s
Sixth Amendment right to jury unanimity. Not every consti-
tutional error requires reversal of a conviction, but, in Ulery,
we held that the receipt of a nonunanimous guilty verdict
always does. 

. That is, we held that acceptance
of a nonunanimous guilty verdict represents a sufficiently
grave error to require reversal of the conviction, when the
error is properly presented to an appellate court on appeal.
         We further held in Ulery that reversal of nonunan-
imous convictions was appropriate even if the error had not
been preserved in the trial court. As a general rule, Oregon
appellate courts will consider assignments of error only
where the error was properly objected to at trial. ORAP
5.45(1). In many cases, jurors were instructed that they
could return nonunanimous guilty verdicts, and nonunan-
imous guilty verdicts were received, without any objection
from the defendant—a circumstance that ordinarily would
preclude appellate review. However, the state has conceded,
and we have agreed, that receipt of nonunanimous verdicts
qualifies as plain error, which is subject to reversal even
when the assignment of error was not preserved. Ulery, 

. And the receipt of a nonunanimous verdict is an
error sufficiently grave that appellate courts should exer-
cise their discretion to correct the error on appeal, despite
the state’s interest “in avoiding the expense and difficulty
associated with a retrial.” 

. Further, in State v.
Williams, 

, 

 (2020), we held that it was
296                                          State v. Flores Ramos

appropriate to waive the rules of appellate procedure to per-
mit consideration of the nonunanimous jury issue in cases
where the issue might not otherwise be considered properly
presented on direct appeal.
         Thus, under Ramos, Ulery, and Williams, the sub-
stantial majority of nonunanimous convictions on appeal
at the time that Ramos was decided must be reversed, and
many such convictions already have been reversed, typically
by order rather than by published opinion. That much has
already been decided. A significant question not yet resolved
is whether Ramos requires convictions to be reversed when
the jury was erroneously instructed that it could convict
without being unanimous, but it nonetheless voted unani-
mously to convict—which is what happened with four of the
counts in this case. The state presents a straightforward
argument that a unanimous conviction renders the instruc-
tional error harmless because defendant ultimately received
that to which he was entitled: unanimity. Thus, although the
state agrees that defendant’s lone nonunanimous conviction
must be reversed, it contends that the unanimous convic-
tions should be upheld. Defendant advances several contrary
arguments, which we address in this opinion. Before taking
up those questions, we recite the facts of this case.
B.    Factual and Procedural Background
         Defendant broke into a home and sexually assaulted
a nine-year-old girl. Defendant was charged with first-
degree unlawful sexual penetration, first-degree sexual
abuse, attempted first-degree rape, first-degree burglary,
and coercion. Before trial, he filed a motion requesting that
the jury be instructed that it needed to be unanimous to
convict. The trial court denied that motion. The jury was
instructed that,
     “[a]s to each count, ten or more jurors must agree on your
     verdict. So whether your verdict is not guilty or guilty, at
     least ten of you must agree on that verdict. If you are divided
     nine to three, for example, you do not have a verdict.”
         After deliberations that lasted approximately an
hour and a half, the jury returned guilty verdicts on each of
the five counts. The trial court polled the jury by asking the
jurors who voted “guilty” on each count to raise their hands.
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The poll indicated that the jury had reached unanimous
guilty verdicts on all counts except for the attempted first-
degree rape count. On that count, only 10 jurors had voted
to convict. Defendant did not object to the manner in which
the trial court polled the jury, and defense counsel indicated
that he was satisfied by the poll. The trial court received the
verdicts and entered a judgment based on them.2
         Defendant appealed. As relevant here, he assigned
error to both the use of the nonunanimous jury instruction
and the receipt of the nonunanimous verdict—assignments
of error that he had preserved in the trial court. He argued
that those errors required reversal of all his convictions. In a
decision issued before Ramos, the Court of Appeals affirmed
defendant’s convictions without opinion. State v. Flores
Ramos, 

, 

 (2019). Defendant filed
a petition for review in this court, which we held in abeyance
until the Supreme Court issued its decision in Ramos. After
Ramos was decided, we allowed review.
          As noted, the jury returned five guilty verdicts,
four of which were unanimous. On the charge of attempted
first-degree rape, the jury was not unanimous. The state
concedes that, under Ramos, defendant’s conviction on that
count cannot stand. We agree and reverse that part of the
trial court’s judgment. What we address in this opinion are
the other four counts, where, despite being instructed incor-
rectly, the jury nonetheless voted unanimously to convict.
                 II. CONSTITUTIONAL ERROR
         The central dispute in this case is whether the trial
court’s instructional error permitting nonunanimous guilty
verdicts requires defendant’s unanimous convictions to be
reversed, either because it amounted to a “structural” error
that always requires reversal or, in the alternative, because
the error was not harmless. Before turning to those argu-
ments, we briefly address an additional argument made
by the state, which suggests that no constitutional error
occurred at all.
    2
      Although the jury returned five guilty verdicts, the first-degree unlawful
sexual penetration and first-degree sexual abuse counts merged for purposes of
conviction, so the judgment reflects four convictions.
298                                       State v. Flores Ramos

         Defendant argues that the Sixth Amendment,
as incorporated through the Due Process Clause of the
Fourteenth Amendment, was violated when the trial court
instructed the jury that it could return a nonunanimous con-
viction. Although the state agrees that the instruction was
erroneous, it disagrees that the Sixth Amendment was vio-
lated simply by the giving of the instruction. The state argues
that an erroneous jury instruction amounts to a federal con-
stitutional violation only if there is “ ‘a reasonable likelihood
that the jury has applied the challenged instruction in a
way’ that violates the Constitution.” Estelle v. McGuire, 

, 

, 

 (1991) (quoting
Boyde v. California, 

, 

, 

 (1990)). The state further argues that, because
the jury was unanimous on the four counts in question, the
jury necessarily did not apply the instruction in a way that
violated the constitution.
          Boyde and McGuire are inapplicable. Those cases
articulate a standard that applies to “claims that allegedly
ambiguous instructions caused jury confusion.” Jones v.
United States, 

, 

, 

 (1999). “In such cases, constitutional error exists only if
‘there is a reasonable likelihood’ that the jury so interpreted
the instruction.” Calderon v. Coleman, 

, 

, 

 (1998). McGuire suggests nothing
different, as a fuller quotation of the passage excerpted by
the state makes clear:
   “In addition, in reviewing an ambiguous instruction such
   as the one at issue here, we inquire ‘whether there is a rea-
   sonable likelihood that the jury has applied the challenged
   instruction in a way’ that violates the Constitution.”

 (quoting Boyde, 

) (emphasis
added).
         The state appears to read Boyde and McGuire to
hold that whether a jury instruction violates the constitution
depends on whether the instruction affected the jury’s ver-
dict, even where the jury would certainly have understood
the instruction in a manner that violated the constitution.
But “[t]he Boyde analysis does not inquire into the actual
effect of the error on the jury’s verdict[.]” Coleman, 525 US
Cite as 

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at 147. That is, when the claim is that “the jury was given
an ambiguous instruction that it might have interpreted”
in an impermissible manner, the question is whether “there
is a reasonable likelihood that the jury so interpreted the
instruction.” Id. at 146 (emphasis added; internal quotation
marks omitted). See United States v. Doyle, 

 (2d Cir 1997) (“In other words, then, we do not engage
in an inquiry of harmless error review such as was enun-
ciated in Chapman v. California, 

, 

, 

 (1967), which looked at the case in its
entirety to analyze the effect of the error on the jury’s ver-
dict. Rather, we assess only the charge, taken as a whole, in
order to determine whether there is a reasonable likelihood
that the jury misinterpreted the reasonable doubt instruc-
tion.” (Emphases in original.)).
         Boyde and McGuire thus articulate an inquiry
applicable only to ambiguous instructions. But the problem
with the instruction challenged in this case is not that it
was ambiguous. Rather, in light of Ramos, it was unambig-
uously wrong; it expressly told the jury that it could do what
the Sixth Amendment forbids. Boyde and McGuire thus do
not apply. And even if they did, they would have little to
add; because the instruction was unambiguously incorrect,
there is more than a reasonable likelihood “that the jury so
interpreted the instruction.” Coleman, 

. We
conclude that the Sixth Amendment is violated when a trial
court tells the jury that it can convict a defendant of a seri-
ous offense without being unanimous. A unanimous verdict
may render that constitutional violation harmless, as we
explain in detail below, but it does not operate retroactively
to prevent the violation from having occurred.
               III.   STRUCTURAL ERROR
         Having concluded that the Sixth Amendment was
violated when the jury was instructed that it could return a
nonunanimous guilty verdict, we turn to the central ques-
tion presented—whether that error requires reversal of
defendant’s unanimous convictions. Most federal constitu-
tional errors require reversal unless the error can be found
“harmless beyond a reasonable doubt.” Chapman, 

. That is, the reviewing court must be satisfied that the
300                                                State v. Flores Ramos

error did not affect the outcome. We address harmless error
in section IV below. However, some federal constitutional
violations qualify as “structural” errors, which is to say that
the error is a “structural defect affecting the framework
within which the trial proceeds, rather than simply an error
in the trial process itself.” Arizona v. Fulminante, 

, 

, 

 (1991). Structural
error is not susceptible to a harmlessness analysis; if a
structural error occurred, the conviction must be reversed.
Defendant argues that the instructional error that occurred
in this case was structural, requiring reversal of all his
convictions.
A.    Structural Error Defined
          In arguing that the instructional error was struc-
tural, defendant must satisfy a high standard. The Supreme
Court has “found an error to be ‘structural,’ and thus sub-
ject to automatic reversal, only in a ‘very limited class of
cases.’ ” Neder v. United States, 

, 

,

 (1999) (quoting Johnson v. United States, 

, 

, 

 (1997)). And,
“[i]f the defendant had counsel and was tried by an impar-
tial adjudicator, there is a strong presumption that any other
errors that may have occurred are subject to harmless-error
analysis.” Rose v. Clark, 

, 

, 

 (1986).
       Consistent with that presumption, the Supreme
Court has held that a wide variety of trial errors are subject
to harmlessness analysis.3 The concept of structural error,
    3
      In Fulminante, 

, the Supreme Court offered the following
partial list of errors subject to harmlessness analysis:
    “unconstitutionally overbroad jury instructions at the sentencing stage of
    a capital case”; “admission of evidence at the sentencing stage of a capital
    case in violation of the Sixth Amendment Counsel Clause”; “jury instruc-
    tion containing an erroneous conclusive presumption”; “jury instruction mis-
    stating an element of the offense”; “jury instruction containing an errone-
    ous rebuttable presumption”; “erroneous exclusion of defendant’s testimony
    regarding the circumstances of his confession”; “restriction on a defendant’s
    right to cross-examine a witness for bias in violation of the Sixth Amendment
    Confrontation Clause”; “denial of a defendant’s right to be present at trial”;
    “improper comment on defendant’s silence at trial, in violation of the Fifth
    Amendment Self-Incrimination Clause”; “statute improperly forbidding trial
    court’s giving a jury instruction on a lesser included offense in a capital
    case in violation of the Due Process Clause”; “failure to instruct the jury
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by contrast, has been reserved for “basic protections” with-
out which “a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence, and no
criminal punishment may be regarded as fundamentally
fair.” Clark, 

 (citation omitted).
         The error at issue here is instructional, and the
Supreme Court has held an instructional error to be struc-
tural only once. In Sullivan v. Louisiana, 

, 

, 

 (1993), the Court held that fail-
ure to properly instruct the jury on the “beyond a reason-
able doubt” standard was structural error. As the Court
explained in Neder, Sullivan’s holding rested on the fact
that an improper reasonable-doubt instruction “ ‘vitiates
all the jury’s findings’ and produces ‘consequences that are
necessarily unquantifiable and indeterminate.’ ” Neder, 

 (quoting Sullivan, 

) (emphasis in
Sullivan; internal citations omitted).
         By contrast, the Supreme Court has several times
held significant instructional errors to be subject to a harm-
lessness analysis. In Neder the Court held that failure to
instruct the jury as to an element of an offense is not struc-
tural error. The Court emphasized that
   “[the defendant] was tried before an impartial judge, under
   the correct standard of proof and with the assistance of
   counsel; a fairly selected, impartial jury was instructed
   to consider all of the evidence and argument in respect to
   [his] defense against the tax charges.”
527 US at 9. The Court has similarly held that unconsti-
tutional mandatory presumptions and misinstruction on a
single element of an offense are errors subject to harmless-
ness analysis. See Carella v. California, 

, 

, 

 (1989); Pope v. Illinois, 

,

, 

 (1987); Clark, 

.

   on the presumption of innocence”; “admission of identification evidence in
   violation of the Sixth Amendment Confrontation Clause”; “admission of the
   out-of-court statement of a nontestifying codefendant in violation of the
   Sixth Amendment Confrontation Clause”; “confession obtained in violation of
   Massiah v. United States, 

, 

, 

 (1964)”;
   “admission of evidence obtained in violation of the Fourth Amendment”;
   [and] “denial of counsel at a preliminary hearing in violation of the Sixth
   Amendment Confrontation Clause.”
302                                       State v. Flores Ramos

In those cases, the Court has explained that, depending on
the strength of the evidence presented at trial, the “erro-
neous instruction” may be “simply superfluous.” Clark, 

. Although removing an element from the jury’s
consideration entirely, or incorrectly permitting the ele-
ment to be decided based on a mandatory presumption,
are undoubtedly serious Sixth Amendment violations, the
Court has nonetheless been clear that such errors are not
structural.
         The Supreme Court also has applied harmless error
analysis even where the error was necessarily one that
would have made an impression on the jury. In Fulminante,
the Court held that admission of a defendant’s coerced con-
fession, in violation of the Fifth Amendment, was subject to
review for harmlessness. The Court recognized that
   “an involuntary confession may have a more dramatic effect
   on the course of a trial than do other trial errors—in partic-
   ular cases it may be devastating to a defendant—but this
   simply means that a reviewing court will conclude in such
   a case that its admission was not harmless error; it is not
   a reason for eschewing the harmless-error test entirely.”
Fulminante, 

.
          Similarly, in Bruton v. United States, 

,

, 

 (1968), the Supreme Court held
that a defendant’s Confrontation Clause rights were violated
by the admission against a nontestifying codefendant at a
joint trial of a confession by the codefendant that implicated
the defendant as well. Even though the jury was instructed
that it could not consider the confession as evidence against
the defendant, the Court explained that the jury could not
be presumed to have followed those instructions where
“the powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the defen-
dant, are deliberately spread before the jury in a joint trial.”

. Nonetheless, even though the premise of
the Bruton line of cases is that certain evidence put before
the jury may be so powerful that the jury cannot ignore it
even if instructed to do so, the Court nevertheless has held
that Bruton error is subject to harmlessness analysis and
may be held harmless based on other evidence admitted at
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trial. Harrington v. California, 

, 

, 

 (1969).

         In sum, the Supreme Court has rejected the notion
of structural error in many circumstances that have involved
violations of indisputably fundamental constitutional pro-
tections afforded to criminal defendants. The Court’s most
recent substantial discussion of when an error is structural
came in Weaver v. Massachusetts, ___ US ___, 

,

 (2017). In Weaver, the Court explained that
it had held errors to be structural for at least three rea-
sons. “First, an error has been deemed structural in some
instances if the right at issue is not designed to protect the
defendant from erroneous conviction but instead protects
some other interest.” 

 An example given in Weaver is a
defendant’s right to self-representation at trial: pro se rep-
resentation typically makes a conviction more likely, not
less, but wrongful denial of the right is a structural error
because of its interference with “the fundamental legal
principle that a defendant must be allowed to make his own
choices about the proper way to protect his own liberty.” 

“Second, an error has been deemed structural if the effects
of the error are simply too hard to measure.” 

 The princi-
pal example given in Weaver is a defendant’s right to select
his own retained counsel. 

 “Third, an error has been
deemed structural if the error always results in fundamen-
tal unfairness”—for example, a denial of appointed counsel
or the absence of a beyond-a-reasonable-doubt instruction.

         Weaver does not hold that any of those condi-
tions is sufficient to make an error structural. Neither,
as Weaver acknowledges, does every example of struc-
tural error fall neatly into only one category. See 

 (“In
a particular case, more than one of these rationales may
be part of the explanation for why an error is deemed
to be structural.”). Rather, the purpose of that catego-
rization, in Weaver itself, was simply to establish that
“[a]n error can count as structural even if the error does
not lead to fundamental unfairness in every case.” 

 Thus,
although Weaver sets out important factors to consider, it
304                                     State v. Flores Ramos

does not offer a clear rubric for evaluating whether an error
is structural.
         In particular, we note that one of the bases for
holding an error structural mentioned in Weaver—that the
effects of the error are “simply too hard to measure,” ___ US
at ___, 137 S Ct at 1908—often will have only a modest role
to play in the analysis. Because the content of jury deliber-
ations will remain unknown to the reviewing court—which
can therefore never be certain about which path the jury took
to its decision or what evidence jurors thought important—
nearly all trial errors are capable of producing effects that
are difficult to measure. Yet the Supreme Court has else-
where recognized that many significant constitutional
errors, despite having effects that are difficult to measure,
are not structural. Referring to improper admissions of a
defendant’s confession and violations of the Confrontation
Clause, for example, the Court acknowledged that “[s]uch
errors, no less than the failure to instruct on an element in
violation of the right to a jury trial, infringe upon the jury’s
factfinding role and affect the jury’s deliberative process
in ways that are, strictly speaking, not readily calculable.”
Neder, 

. Nevertheless, those errors are subject
to a harmlessness analysis. 

         As another example, in Hedgpeth v. Pulido, 

, 

, 

 (2008), “the jury was
instructed on alternative theories of guilt and may have
relied on an invalid one” in convicting the defendant. Such
an error, almost by definition, precludes any certainty about
whether the error was harmless. Nevertheless, the Court
held that the error was not structural, reasoning that “[a]n
instructional error arising in the context of multiple theo-
ries of guilt no more vitiates all the jury’s findings than does
omission or misstatement of an element of the offense when
only one theory is submitted.” 

 (emphasis in original).
        As Weaver notes, in the context of the denial of a
defendant’s right to select his or her own attorney, the
Supreme Court did rely on the immeasurability of the effects
of the error in concluding that the error was structural.
United States v. Gonzalez-Lopez, 

, 

, 

 (2006). But Gonzalez-Lopez appears to
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be the only Supreme Court decision to deem an error struc-
tural based primarily on immeasurability, and the violation
in that case did not involve the ordinary measurement dif-
ficulties attendant to any evidentiary or instructional error.
Rather, as the Court explained, denial of a defendant’s coun-
sel of choice could affect “investigation and discovery, devel-
opment of the theory of defense, selection of the jury, presen-
tation of the witnesses, and style of witness examination and
jury argument,” as well as “whether and on what terms the
defendant cooperates with the prosecution, plea bargains, or
decides instead to go to trial.” 

 From the Supreme Court’s
treatment of the issue in those cases, we conclude that the
difficulty of measuring the effects of an error can support a
determination that an error is structural, but it will gener-
ally weigh heavily only where the error “pervades the entire
trial.” 

         With those broad contours of structural error in
mind, we turn to the error at issue in this case. As we have
explained, the reason that the Sixth Amendment forbids the
jury instruction challenged here is because the jury instruc-
tion told the jury that it could do something that it consti-
tutionally could not: return a guilty verdict without being
unanimous. The state argues that, as a result, the instruc-
tion does not lead to fundamental unfairness in every case;
it does so, at most, only when the jury returns a nonunani-
mous verdict. And, given that the jury can be (and here was)
polled, the unfairness is easy to detect when it does occur.
The state concludes that, because the error does not make
every case fundamentally unfair and because the effect of
the error is measurable, it is not structural; rather, it is
instead subject to a harmlessness analysis.
         Defendant, on the other hand, offers several accounts
of how the erroneous instruction leads to unfairness that is
neither readily detectable nor limited to situations in which
the jury returns a nonunanimous verdict. We examine each
of those arguments in turn.
B. Reasonable Doubt
        Defendant’s first and most straightforward argu-
ment is that telling a jury that it may convict a defendant
306                                       State v. Flores Ramos

without being unanimous is tantamount to misinstructing
the jury about the reasonable-doubt standard. Were that so,
Sullivan, 

, would require us to conclude that the
error is structural.
        In this case, the jury was instructed that it could
not convict defendant unless persuaded of his guilt beyond a
reasonable doubt:
      “The defendant, Mr. Flores Ramos, is innocent unless
   and until Mr. Flores Ramos is proven guilty beyond a rea-
   sonable doubt. The burden is on the State and the State
   alone to prove the guilt of the defendant beyond a reason-
   able doubt.
      “Reasonable doubt is a doubt based on common sense
   and reason. Reasonable doubt is not an imaginary doubt.
   Reasonable doubt means an honest uncertainty as to the
   guilt of the defendant.
      “You must return a verdict of not guilty if, after careful
   and impartial consideration of all of the evidence in the
   case, you are not convinced to a moral certainty that the
   defendant is guilty.”
Defendant did not object to those instructions, and he does
not argue that they were wrong or that ordinarily they would
be insufficient. Rather, he argues that “the nonunanimous
jury instruction is structural error even in light of an other-
wise adequate reasonable-doubt instruction.” He makes two
arguments for that proposition.
         First, defendant contends that “[a] nonunanimous-
verdict instruction incorrectly informs the jury about the
quantum of certitude necessary to find guilt beyond a rea-
sonable doubt—83%.” We disagree with that characteriza-
tion. An instruction that 10 votes out of 12 is sufficient to
convict no more instructs the jury that “beyond a reason-
able doubt” means “83% certainty” than a jury unanim-
ity instruction implies that a juror must be 100% certain
to convict. Defendant’s argument incorrectly conflates the
percentage of votes required for a verdict with the degree
of certainty that an individual juror must feel in order to
conclude that the defendant is guilty beyond a reasonable
doubt.
Cite as 

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          The subtler version of defendant’s argument is that
the nonunanimous jury instruction improperly indicates to
a juror that that juror may find guilt beyond a reasonable
doubt despite the reasonable doubts of other jurors. As a
result, defendant contends, jurors would misunderstand the
nature of the “beyond a reasonable doubt” standard, which
defendant understands to require acquittal if any reason-
able juror could have a reasonable doubt. As defendant puts
it, “[T]he court has effectively told the jury that the reason-
able doubts of other jurors are irrelevant: the jury may find
guilt beyond a reasonable doubt even if individual jurors do
not agree.” The problem with defendant’s argument, as we
understand it, is that it relies on a conception of reasonable
doubt that the Supreme Court has expressly rejected.
         “What the factfinder must determine to return a
verdict of guilty is prescribed by the Due Process Clause.”
Sullivan, 

. Specifically, the Due Process
Clause requires proof of guilt beyond a reasonable doubt. In
re Winship, 

, 

, 

(1970). That is true regardless of whether the finder of fact
is a judge or a jury. As the Court explained in Sullivan:
   “It would not satisfy the Sixth Amendment to have a jury
   determine that the defendant is probably guilty, and then
   leave it up to the judge to determine (as Winship requires)
   whether he is guilty beyond a reasonable doubt. In other
   words, the jury verdict required by the Sixth Amendment
   is a jury verdict of guilty beyond a reasonable doubt.”

. As a result, both the Sixth Amendment and
the Due Process Clause include an identical requirement of
proof beyond a reasonable doubt.
        In Apodaca v. Oregon, 

, 

,

 (1972), overruled by Ramos, 

,
the Supreme Court upheld a nonunanimous conviction
against a challenge under the Sixth Amendment, as incor-
porated through the Due Process Clause of the Fourteenth
Amendment. In a companion case, Johnson v. Louisiana,

, 

, 

 (1972), the Court
upheld nonunanimous convictions against an independent
Due Process Clause challenge. The limited scope of Johnson
had a somewhat technical reason behind it: the defendant
308                                      State v. Flores Ramos

in Johnson had been convicted in a state court before the
Court had issued its opinion in Duncan v. Louisiana, 

, 

, 

 (1968), which had incor-
porated the Sixth Amendment’s jury trial right to the states
through the Fourteenth Amendment. Under DeStefano v.
Woods, 

, 

, 

 (1968),
overruled by Griffith, 

, the Sixth Amendment
was not applicable to the cases tried before Duncan, even if
those cases were still on direct appeal. Thus, Johnson did
not address the Sixth Amendment, which did not apply to
the defendant’s case; instead, it addressed only whether the
Due Process Clause or the Equal Protection Clause of the
Fourteenth Amendment required jury unanimity indepen-
dent of the Sixth Amendment.
         One of the arguments advanced by the defendant
in Johnson was that the nonunanimous verdict interfered
with the Due Process Clause’s requirement of proof beyond
a reasonable doubt. The defendant’s contention in Johnson
is indistinguishable from the argument advanced by defen-
dant in this case. The Supreme Court rejected that argu-
ment, explaining:
  “In our view disagreement of three jurors does not alone
  establish reasonable doubt, particularly when such a
  heavy majority of the jury, after having considered the dis-
  senters’ views, remains convinced of guilt. That rational
  [jurors] disagree is not in itself equivalent to a failure of
  proof by the State, nor does it indicate infidelity to the
  reasonable-doubt standard.”
Johnson, 

. That is, Johnson held that proof
beyond a reasonable doubt does not require a conclusion that
no reasonable juror could (or did) have a reasonable doubt.
A juror who understands that he or she may believe a defen-
dant guilty beyond a reasonable doubt even though other
reasonable jurors may disagree properly understands the
concept. As Johnson explained, that conclusion is consistent
with numerous other applications of the reasonable-doubt
standard:
  “Jury verdicts finding guilt beyond a reasonable doubt are
  regularly sustained even though the evidence was such that
  the jury would have been justified in having a reasonable
Cite as 

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   doubt; even though the trial judge might not have reached
   the same conclusion as the jury; and even though appel-
   late judges are closely divided on the issue whether there
   was sufficient evidence to support a conviction. That want
   of jury unanimity is not to be equated with the existence
   of a reasonable doubt emerges even more clearly from the
   fact that when a jury in a federal court, which operates
   under the unanimity rule and is instructed to acquit a
   defendant if it has a reasonable doubt about his guilt, can-
   not agree unanimously upon a verdict, the defendant is not
   acquitted, but is merely given a new trial. If the doubt of a
   minority of jurors indicates the existence of a reasonable
   doubt, it would appear that a defendant should receive a
   directed verdict of acquittal rather than a retrial. We con-
   clude, therefore, that verdicts rendered by nine out of 12
   jurors are not automatically invalidated by the disagree-
   ment of the dissenting three. Appellant was not deprived of
   due process of law.”
Johnson, 

 (citations omitted). Of course,
Ramos holds that even a substantial majority of jurors, prop-
erly satisfied beyond a reasonable doubt that the defendant
is guilty, nevertheless cannot deliver a valid guilty verdict,
but that is a distinct question from whether those jurors
properly understand the concept of proof beyond a reason-
able doubt.
         The Johnson reasonable-doubt holding remains
good law after Ramos. Ramos addressed only whether the
Sixth Amendment requires nonunanimous verdicts, a ques-
tion that was not at issue in Johnson. And the holding in
Ramos that the Sixth Amendment—because of the original
meaning of the term “jury” that appears in its text—requires
jury unanimity does not call into question the holding in
Johnson that the concept of reasonable doubt does not, in
and of itself, demand unanimity. In addition, the holding in
Johnson on this point also has been relied on in at least one
subsequent case, Tibbs v. Florida, 

, 42 n 17, 

, 

 (1982) (citing Johnson, 

, for the proposition that “[o]ur decisions also make clear
that disagreements among jurors or judges do not them-
selves create a reasonable doubt of guilt”). We are bound
by the holding in Johnson on the relationship between rea-
sonable doubt and unanimity, and, therefore, we reject the
310                                     State v. Flores Ramos

argument that defendant advances about their relationship.
Moreover, even if we were not bound by it, the Court’s rea-
soning in Johnson on this point is persuasive.
C. Effect of Nonunanimous Jury Instruction
         Next, defendant engages more directly with the
state’s central contention: that no fundamental unfairness
results when the jury returns a unanimous verdict, which
can be discerned through polling. Defendant resists that
conclusion in two related ways. First, he contends that the
jury instruction that unanimity was not required prevented
jurors from appreciating the significance of their individual
decisions and that, as a result, jurors may have voted to con-
vict without being convinced of defendant’s guilt. Second, he
argues that the nonunanimous jury instruction affected the
manner of deliberations. We consider each of those issues in
turn.
      1.   Reduced responsibility
         Defendant takes the position that, because jurors
were told that the votes of only 10 of them were sufficient
for a conviction, if there were one or two remaining hold-
out jurors on any of the counts, those jurors may have felt
a diminished sense of responsibility, knowing that their
votes were not essential to the verdict. A sense of futility
having been instilled, those jurors may have voted to con-
vict defendant, perhaps simply to appease the majority or
because of social pressure, even though they in fact retained
reasonable doubts about his guilt. Had those jurors known
what they should have been told—that even a single vote
to acquit was enough to prevent a conviction—they might
have refused to convict. Thus, defendant contends, his trial
was fundamentally unfair, regardless of whether the jury
reached a unanimous verdict. Even unanimous verdicts are
tainted by the instruction.
          We disagree with defendant’s central contention,
which is that the jury instruction permitting nonunanimous
verdicts necessarily left holdout jurors with a diminished
sense of responsibility for their votes, such that the trial was
rendered fundamentally unfair. Even assuming that the
erroneous instruction by itself may have a tendency to lower
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the perceived stakes of the decision for some jurors, the jury
received other instructions that made clear that, outvoted
or no, jurors could not find the defendant guilty unless they
were convinced of his guilt beyond a reasonable doubt.
        The trial court began its instructions to the jury
with the following:
      “Members of the jury, it is your sole responsibility to
   make all of the decisions about the facts in this case. You
   must evaluate the evidence to determine how reliable or
   how believable that evidence is. When you make your deci-
   sion about the facts, you must then apply the legal rules to
   those facts and reach your verdict.
      “Remember that your power to reach a verdict is not
   arbitrary. When I tell you what the law is on a particular
   subject or tell you how to evaluate certain evidence, you
   must follow these instructions.”
Jurors were also instructed that
   “[i]t is your duty to weigh the evidence calmly and dispas-
   sionately and to decide this case on its merits. Do not allow
   bias, sympathy, or prejudice any place in your delibera-
   tions. Do not decide this case based on guesswork, conjec-
   ture, or speculation. Do not consider what sentence might
   be imposed by the Court if the defendant is found guilty.”
And, after being instructed on reasonable doubt, jurors were
told:
      “You must return a verdict of not guilty if, after careful
   and impartial consideration of all of the evidence in the
   case, you are not convinced to a moral certainty that the
   defendant is guilty.”
The state argues that those instructions were sufficient
to inform jurors that they could cast a guilty vote only if
they concluded, based on the evidence, that defendant was
guilty beyond a reasonable doubt, and so also would have
told jurors that they could not vote to convict simply because
they found themselves outnumbered.
         Defendant counters that all those instructions are
ambiguous: “[T]he second-person use of the word ‘you’ in the
reasonable doubt instruction reasonably refers to ‘you,’ the
entire jury.” (Emphasis in original.) He asserts that jurors
312                                             State v. Flores Ramos

were not told that they could not individually vote to con-
vict unless they were convinced beyond a reasonable doubt
of defendant’s guilt.
        Even assuming a certain level of ambiguity in those
instructions, however, those instructions were given along-
side an instruction that clearly emphasized jurors’ obliga-
tion to make individual decisions. Jurors were instructed
to “keep in mind that each party is entitled to the consid-
ered decision of each juror.” And, before any of those other
instructions, each juror swore or affirmed, as required by
ORCP 57 E, “that they and each of them will well and truly
try the matter in issue between the plaintiff and defendant,
and a true verdict give according to the law and evidence as
given them on the trial.” 4 (Emphasis added.)
          Taking the instructions as a whole, we do not think
that jurors would have been left with any doubt that they
were required to make an individual decision based on the
evidence. For example, we see no basis for thinking that
a juror, upon being told, “Do not decide this case based on
guesswork, conjecture, or speculation,” would assume that
the instruction applied only to the jury as a whole, but not to
its members individually, and so would feel free to make his
or her own decision based on a guess. Similarly, reasonable
jurors, having been reminded that “each party is entitled
to the considered decision of each juror,” would not inter-
pret the instruction that “[y]ou must return a verdict of not
guilty if * * * you are not convinced to a moral certainty that
the defendant is guilty” to permit individual votes to be cast
on some other standard.
        We therefore perceive no realistic possibility that
jurors would understand their oath and the instructions
as permitting them to cast a vote to convict defendant
while still retaining a reasonable doubt about his guilt.
With that conclusion in mind, defendant’s argument can
succeed only if we assume that jurors may have disobeyed
those other instructions. That is, defendant’s argument that
the nonunanimous jury instruction leads to fundamental
    4
      The transcript reflects that the oath was administered, but it does not
record the precise wording. Defendant makes no argument that the oath in this
case was in any way defective.
Cite as 

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unfairness, by creating the risk that a juror who would be
inclined to acquit will “give up” too easily, requires us to
assume that that juror will disregard the other instructions
addressed to his or her individual responsibility.

         In evaluating whether an error requires reversal,
the Supreme Court has repeatedly emphasized the pre-
sumption that “ ‘jurors, conscious of the gravity of their task,
attend closely the particular language of the trial court’s
instructions in a criminal case and strive to understand,
make sense of, and follow the instructions given them.’ ”
United States v. Olano, 

, 

, 

 (1993) (quoting Francis v. Franklin, 

,
324 n 9, 

, 

 (1985)). In evaluat-
ing whether the instructional error that did occur here is
such as to require reversal in every case, we must, like the
Supreme Court, give great weight to “the almost invariable
assumption of the law that jurors follow their instructions.”
Richardson v. Marsh, 

, 

, 

 (1987). In only a few circumstances has the
Supreme Court found an exception to that rule. In Bruton,
for example, as noted above, the Supreme Court held that
it was unrealistic to expect jurors to obey an instruction to
ignore a confession by a codefendant directly implicating the
defendant when considering the question of the defendant’s
guilt.

         But this is not a case of that type. Here, jurors not
convinced of guilt beyond a reasonable doubt were simply
required to report a vote of “not guilty,” even if they were
outvoted. Jurors were not asked to perform the equivalent
of “the mental gymnastics of considering an incriminat-
ing statement against only one of two defendants in a joint
trial.” Frazier v. Cupp, 

, 

, 

 (1969). There was no contradiction in the
instructions, nor is there any reason to think that holdout
jurors would face pressure to change their votes after the
jury had already reached a verdict. Simply put, all 12 jurors,
when polled, individually stated that they had found the
defendant guilty beyond a reasonable doubt of the counts
in dispute. We would have to speculate not to take them at
their word.
314                                         State v. Flores Ramos

         Our rejection of defendant’s argument is consis-
tent with, and likely compelled by, Supreme Court prece-
dent. In Romano v. Oklahoma, 

, 

, 

 (1994), the defendant was sentenced to death by
a jury that had been told that the defendant already had
received a death sentence for a separate crime. The defen-
dant argued that the imposition of a death sentence by a
jury that had received that information violated the Due
Process Clause because knowledge of the extant sentence
would have diminished jurors’ sense of responsibility for
their own sentencing decision. 

. The Supreme Court
rejected that argument for two reasons. First, the Court
held that, “if the jurors followed the trial court’s instruc-
tions, which we presume they did, this evidence should have
had little—if any—effect on their deliberations.” 

 (citation omitted). Second, the Court explained:
       “Even assuming that the jury disregarded the trial
   court’s instructions and allowed the evidence of petitioner’s
   prior death sentence to influence its decision, it is impossible
   to know how this evidence might have affected the jury. It
   seems equally plausible that the evidence could have made
   the jurors more inclined to impose a death sentence, or it
   could have made them less inclined to do so. Either conclu-
   sion necessarily rests upon one’s intuition. To hold on the
   basis of this record that the admission of evidence relating
   to petitioner’s sentence in the [earlier murder prosecution]
   rendered petitioner’s sentencing proceeding for the [second
   murder case] fundamentally unfair would thus be an exer-
   cise in speculation, rather than reasoned judgment.”

. To conclude that the erroneous instruction in
this case will always cause a diminished sense of respon-
sibility in individual jurors, so as to render all trials fun-
damentally unfair, would strain against the Court’s Due
Process Clause analysis in Romano.
      2. Effect on deliberation
         That does not dispose of defendant’s alternative
structural error contention, which is that the instruction
that jurors could convict without being unanimous affected
the process of jury deliberation. Defendant argues that, as a
result of the instructional error, jurors in effect were not told
“to engage in a unanimous-consensus deliberative model.”
Cite as 

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As defendant puts it, permitting jurors to return nonunani-
mous verdicts “shifts the burden of persuading other jurors
from majority jurors to minority jurors.”
         That is an unconvincing account of how an instruc-
tion that unanimity was required for guilty verdicts could
have made a difference for counts where the jury did vote
unanimously to convict. Whatever the number of votes nec-
essary to reach a verdict, jurors in the minority will seek to
persuade jurors in the majority, and jurors in the majority
will seek to persuade jurors in the minority. The potential
difference, when the verdict need not be unanimous, is that
jurors in the majority need not persuade everybody to reach
a verdict. But, while that might provide an account of why
the instruction is unfair when the jury returns a nonunan-
imous guilty verdict, it fails to explain why the instruc-
tion makes the trial fundamentally unfair even if the jury
returned a unanimous verdict. When the verdict is unani-
mous, either the jurors in the majority did successfully per-
suade any holdouts in favor of acquittal—that is, what defen-
dant contends should have happened in fact did happen—or
all jurors were persuaded of the defendant’s guilt before any
discussion occurred. We see no fundamental unfairness so
as to universally require reversal of unanimous verdicts.
        Amicus curiae the Criminal Justice Reform Clinic
at Lewis & Clark Law School presents a more concrete
argument about how the nonunanimous verdict instruction
may have affected jury deliberations. Relying on social sci-
ence research, the Clinic argues that juries told that they
can reach a nonunanimous verdict are more likely to follow
a deliberative process that is “verdict-driven rather than
evidence-driven,” meaning that the jury votes sooner and
more often, reaches a verdict more quickly, and spends com-
paratively less time discussing evidence.
         Below, we examine in more depth the question of
how those asserted differences affect the harmless error
analysis. At this point, though, the question is whether
the error is structural, and we conclude that—even on the
assumption that such differences do exist—the Clinic’s
brief does not provide an account of why the erroneous jury
instruction given in this case “cast[s] so much doubt on the
316                                     State v. Flores Ramos

fairness of the trial process that, as a matter of law, [the
error] can never be considered harmless.” Satterwhite v.
Texas, 

, 

, 

(1988).
          As an initial matter, we note that the Supreme
Court’s decision in Ramos did not require that jurors fol-
low any particular deliberative model, nor is that an obvious
implication of its holding. Neither defendant nor the Clinic
develops an argument that the Sixth Amendment—or any
other provision of the United States Constitution—requires
that jurors deliberate in a particular manner. To the con-
trary, most courts to consider the question have rejected the
argument that the Sixth Amendment requires a particular
quality or quantity of deliberation before a conviction can
be held valid. As one court put it, “It seems self-explanatory
that ‘[n]o rule requires a jury to deliberate for any set length
of time.’ ” United States v. Dolan, 

 (8th Cir
1997) (quoting United States v. Penagaricano-Soler, 911 F2d
833, 846 n 15 (1st Cir 1990)). Challenges to verdicts based
on the length of jury deliberations have been consistently
rejected, even when the jury was out “only five to seven min-
utes” before returning a verdict. United States v. Brotherton,
427 F2d 1286, 1289 (8th Cir 1970); see also Wall v. United
States, 384 F2d 758, 762 (10th Cir 1967) (upholding verdict
where jury deliberated for one hour following an eight-day
trial); Kimes v. United States, 242 F2d 99, 101 (5th Cir),
cert den, 

, 

, 

 (1957)
(“we find nothing suspicious, questionable, or remarkable
in the action of the jury in returning its verdict of guilty
after deliberating only twenty minutes”); United States v.
Anderson, 561 F2d 1301, 1303 (9th Cir 1977) (upholding
verdict returned after “brief deliberation”); United States v.
Burfoot, 

 (4th Cir 2018) (upholding convic-
tions where the jury deliberated for five hours after a five-
week trial). Similarly, there are no cases purporting to reg-
ulate the frequency with which juries should vote on their
way to reaching a verdict or the extent to which the evidence
must be discussed.
        Finally, the Clinic does not argue that there is a one-
to-one correlation between “verdict-driven” deliberations
and instructions that jurors do not need to be unanimous
Cite as 

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to convict. The Clinic’s claim, as we understand it, is that a
jury instruction permitting nonunanimous verdicts makes
“verdict-driven” deliberations more likely, not that “verdict-
driven” deliberations occur only when juries are misin-
structed on unanimity. At bottom, then, we are left with
an argument that the instruction may have made the jury
less likely to employ one constitutionally permissible style
of deliberation and more likely to use a different, also con-
stitutionally permissible, style of deliberation. That falls far
short of the type of error after which “no criminal punish-
ment may be regarded as fundamentally fair,” Clark, 

, so as to amount to structural error.
D. Erosion of Public Confidence
        Finally, defendant argues that a nonunanimous jury
instruction constitutes structural error because it “erodes
public confidence in the jury-trial right.” However, the
Supreme Court has emphasized that “the harmless-error
doctrine is essential to preserve the ‘principle that the
central purpose of a criminal trial is to decide the factual
question of the defendant’s guilt or innocence, and promotes
public respect for the criminal process by focusing on the
underlying fairness of the trial rather than on the virtually
inevitable presence of immaterial error.’ ” Fulminante, 

 (quoting Delaware v. Van Arsdall, 

, 

, 

 (1986)). Thus, although
constitutional error may tend to undermine public confi-
dence, unwarranted reversals of criminal convictions also
undermine the reliability of the adjudicative process, along
with the public perception of it.
         Defendant draws an analogy to two other cases
in which the Supreme Court has found structural error:
Batson v. Kentucky, 

, 

, 

 (1986), and Vasquez v. Hillery, 

, 

,

 (1986). In Batson, the Supreme Court held
that it violated the Equal Protection Clause for a prosecu-
tor to exercise a peremptory strike against a juror on the
basis of race. In Hillery, the Court reaffirmed that the Equal
Protection Clause forbids the indictment of a defendant by a
grand jury from which members of the defendant’s race have
been excluded. In both cases, the error was held structural.
318                                       State v. Flores Ramos

In Hillery, the Court explained that, “[w]hen constitutional
error calls into question the objectivity of those charged
with bringing a defendant to judgment, a reviewing court
can neither indulge a presumption of regularity nor evalu-
ate the resulting harm.” 

. In Batson, the Court
held that race-based exclusion of jurors “undermine[s] pub-
lic confidence in the fairness of our system of justice.” 

.
         Defendant argues that the same is true here. He
points out that, in Ramos, the Supreme Court observed that
the initial adoption of nonunanimous juries in Oregon had
been motivated by racism:
       “Adopted in the 1930s, Oregon’s rule permitting
   nonunanimous verdicts can be similarly traced to the rise
   of the Ku Klux Klan and efforts to dilute ‘the influence of
   racial, ethnic, and religious minorities on Oregon juries.’ ”
Ramos, 590 US at ___, 

 (quoting State v.
Williams, No. 15-CR-58698). Defendant contends that,
because Oregon’s nonunanimous jury system was adopted
in part for racist reasons, it should be held to undermine
confidence in the criminal justice system just as in Batson.
Several amici join defendant on this point, arguing that
reversal of defendant’s convictions, and all others obtained
under a system that permitted nonunanimous convictions,
is necessary to restore the legitimacy of the criminal justice
system.
         But there is little analogy between the constitu-
tional violations that occurred in Batson and Hillery and the
violation in this case. In this case, no juror was excluded on
the basis of race. All jurors, regardless of race, unanimously
found defendant guilty of the four counts in dispute. If the
jury were permitted to convict a defendant without being
unanimous, there undoubtedly would be some cases where
the jury’s vote breaks down along racial or ethnic lines. But
that does not explain why public confidence in unanimous
verdicts—where that potential verifiably was not realized—
should be undermined.
        Defendant’s analogy to decisions under the Equal
Protection Clause fails for another reason as well. The Sixth
Cite as 

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Amendment violation that occurred here—instructing the
jury that it did not need to be unanimous to convict—does
not depend on why Oregon first began using nonunani-
mous juries. The right to a unanimous verdict derives from
the text and history of the Sixth Amendment and, as the
Supreme Court explained in Ramos, “a jurisdiction adopting
a nonunanimous jury rule even for benign reasons would
still violate the Sixth Amendment.” 590 US at ___ n 44,

 n 44. We cannot conclude that the error is
structural—that it always requires reversal, regardless of
the circumstances under which it is given and the effect
that it is likely to have—based on a historical circumstance
that has no inherent link to the constitutional violation at
issue. See Neder, 

 (“Under our cases, a constitu-
tional error is either structural or it is not.”).

         In all, defendant’s emphasis on the importance of
unanimity to public confidence in the jury’s verdict only
cements our view that the instructional error that occurred
here was not the type of constitutional violation after which
“a criminal trial cannot reliably serve its function as a vehi-
cle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair.” Clark,

 (citation omitted). The jury was not told
that it needed to be unanimous, but—as to the four counts
in dispute here—it did reach unanimous verdicts. Those ver-
dicts represent the consensus of “a jury selected from a rep-
resentative cross section of the entire community.” Ramos,
590 US at ___ n 47, 

 n 47. Defendant’s trial
before that “impartial adjudicator,” combined with his rep-
resentation by counsel, gives rise to “a strong presumption
that any other errors that may have occurred are subject to
harmless-error analysis.” Clark, 

. For the rea-
sons we have articulated above, defendant has not overcome
that presumption.5

    5
      Our conclusion on this point is consistent with the Supreme Court’s deci-
sion in Burch v. Louisiana, 

, 132 n 4, 

, 

(1979), which affirmed the conviction of a defendant convicted unanimously by a
six-person jury instructed that it could convict by a vote of five to one. The Court’s
reasoning in Burch is somewhat obscure, and it is not clear whether the questions
that we consider here were squarely presented in that case, so we have made our
decision in this case without relying on Burch.
320                                   State v. Flores Ramos

                  IV. HARMLESS ERROR
         When a federal constitutional error is not struc-
tural, the conviction can be affirmed only if the error “was
harmless beyond a reasonable doubt.” Fulminante, 

. An error is harmless beyond a reasonable doubt if
the reviewing court is satisfied “beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained.” Chapman, 

.
         The state argues that a “nonunanimous verdict”
instructional error is harmless whenever the jury, in fact,
reached a unanimous verdict. Thus, the state argues, all
that is needed to establish harmlessness is the jury poll
showing unanimity. Defendant pushes back against that
argument in several ways, contending that this court can-
not find the error harmless as to any count in this case. We
consider each of defendant’s arguments and, for the reasons
that follow, reject them.
A. Neder
         First, defendant argues that the state’s position is
inconsistent with the Supreme Court’s decision in Neder.
Relying on Neder, defendant argues that, whatever the poll
shows, his convictions can be affirmed only if the record con-
tains “uncontested and overwhelming evidence of guilt on
every element.” (Emphasis in original.) In Neder, the trial
court erred by failing to submit one of the elements of the
offense to the jury at all, instead making its own decision
that the state had satisfied that element beyond a reasonable
doubt. The Court held that the conviction could nevertheless
be affirmed if the error was harmless beyond a reasonable
doubt, summarizing the applicable inquiry in the follow-
ing manner: “Is it clear beyond a reasonable doubt that a
rational jury would have found the defendant guilty absent
the error?” Neder, 

. Applying that standard in
Neder, the Court framed the question as being “whether the
record contains evidence that could rationally lead to a con-
trary finding with respect to the omitted element.” 

.
The Court concluded, in that case, that there was no such
evidence. 

.
         Defendant argues that this court must conduct the
same inquiry here, with respect to each element of every
Cite as 

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charged offense. But that argument ignores the difference
between the error in Neder and the error in this case. Under
the Chapman standard, the overall question is whether the
court can “conclude beyond a reasonable doubt that the jury
verdict would have been the same absent the error.” Neder,

. In Neder, the error lay in failing to submit
an element to the jury at all, with the result that the jury
never had an opportunity to decide it. That error could be
held harmless only if the Court could be confident that the
jury would have convicted the defendant even if it had con-
sidered the additional element. And the Court could have
that confidence only if the “omitted element is supported by
uncontroverted evidence.” 

.
         In this case, by contrast, every element of each of
the four disputed counts was submitted to the jury, and the
poll shows that the jury unanimously had concluded that the
state had proved every element beyond a reasonable doubt.
The question is not whether a reasonable jury necessarily
would reach the same conclusion; unlike the Court in Neder,
we know that this jury in fact did so. The question in this
case is whether we can be confident, beyond a reasonable
doubt, that the jury would have reached the same conclusion
had it been properly instructed as to unanimity—a conclu-
sion that does not require overwhelming evidence on every
element, if we can be satisfied that the poll was accurate
and that the instruction did not have a significant impact on
jury deliberations.6
B. Zolotoff
        Next, defendant argues that the state’s position is
inconsistent with this court’s decision in State v. Zolotoff,

, 

 (2014). Defendant argues that,
under Zolotoff, an error in an instruction that otherwise
would have provided “the jury with a legal distinction to
apply during its deliberations” can be found harmless only

    6
      For the same reason, this case does not involve “first-guessing” a jury’s
decision, which defendant argues is not permitted by the Oregon Constitution.
The jury reached unanimous decisions on the disputed counts. The question is
whether those decisions, which the jury did make, must be reversed because
of the instructional error. We therefore reject defendant’s state constitutional
argument.
322                                     State v. Flores Ramos

if another instruction conveyed the same legal distinction
to the jury. Defendant argues that “a proper unanimity
instruction would have given the jury a significant legal dis-
tinction to consider when deliberating and assessing guilt,”
although, perhaps because he reads Zolotoff as establishing
a per se rule, he does not articulate a specific theory of how
the instruction could have affected the jury’s deliberations.
We disagree with defendant’s reading of Zolotoff.
         In Zolotoff, the defendant was convicted of pos-
session of a weapon by an inmate. 

. He had
requested, but been denied, an instruction on the lesser-
included offense of attempted possession of a weapon by
an inmate. 

 The state conceded that the failure to so
instruct the jury had been error, but argued that the error
was necessarily harmless because, even if the jury had been
instructed on the lesser-included offense, it would also have
been instructed, pursuant to ORS 136.460(2), that it could
consider the lesser-included offense only after reaching a
not guilty verdict on the greater-inclusive offense. 

. Thus, the state’s reasoning ran, the jury never would
have had cause to consider the attempt charge, even had it
been so instructed, so the error could not have affected the
verdict.
         We rejected that categorical argument. We first rec-
ognized that, as the state had argued, “there may be many
instances in which an appellate court will be able to con-
clude from the evidence, the arguments, and the instruc-
tions that the jury would have reached the same verdict on
the charged offense even if it also had received instruction
on the lesser-included offense.” Zolotoff, 

.
But we held that “an error in failing to instruct on a lesser-
included offense will not always be harmless” because
“[t]here may be circumstances in which the elements of the
charged crime are clearer when they are viewed in contrast
with the elements of a lesser-included offense.” 

.
Applying that reasoning to the case at hand, we explained,
   “That erroneously omitted instruction would have told the
   jurors that there was a legal distinction between taking a
   substantial step toward making the spoon into a weapon
   and completing the task. In other words, the definition of
Cite as 

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   the term ‘weapon’ told the jury what a weapon is, but it did
   not tell the jury that the spoon was not a weapon if it was
   an object that defendant was still in the process of making
   into a weapon. In this case, an instruction on the elements
   of the lesser-included offense of attempted possession of a
   weapon by an inmate would have been particularly help-
   ful because, as the state concedes, there was evidence from
   which the jury could have found that the spoon was not a
   weapon and therefore that defendant did not actually pos-
   sess a weapon; he only attempted to make the spoon into a
   weapon and possess it.”
Id. at 720.
         Zolotoff did not, therefore, embrace a categorical
rule that the omission of any instruction that might help
the jury understand a legal distinction cannot be harmless.
Rather, Zolotoff rejected the categorical rule proposed by
the state in favor of a different approach, recognizing that
an instruction on a lesser-included offense may help the
jury better understand the elements of the greater-inclusive
offense, and the absence of such an instruction may there-
fore have affected the verdict. But, as Zolotoff acknowledged,
both of those conclusions turn on what the instruction would
have helped the jury understand and the importance of the
distinction to the case at hand.
         Here, even leaving aside the fact that Zolotoff did
not involve an application of the federal harmlessness stan-
dard, Zolotoff is not especially pertinent. Defendant faults
the instruction here for failing to inform the jury about the
importance of unanimity and that that jury could return a
guilty verdict only if it were unanimous. Obviously, the fail-
ure to impress upon the jurors that guilty verdicts needed
to be unanimous was significant as to the single nonunan-
imous guilty verdict returned by the jury. But, insofar
as the jury did return unanimous guilty verdicts on the
other counts, defendant does not persuasively explain how
instructing the jury on the necessity of a unanimous verdict
would have affected the unanimous verdicts that they did
return. As discussed above, jurors were given ample instruc-
tion on their duty with respect to their individual determi-
nations of the defendant’s guilt, and they are presumed to
have followed those instructions. “Judicious application of
324                                   State v. Flores Ramos

the harmless-error rule does not require that we indulge
assumptions of irrational jury behavior when a perfectly
rational explanation for the jury’s verdict, completely con-
sistent with the judge’s instructions, stares us in the face.”
Schneble v. Florida, 

, 

, 

 (1972).
C. The Jury Poll
         Defendant also challenges the sufficiency of the poll
of the jury. Insofar as defendant’s argument is that the poll,
in and of itself, does not establish that the instruction had
no effect on the jury’s deliberations, we agree. But, to the
extent that defendant contends that the poll was insuffi-
cient to establish whether the jury in fact was unanimous,
we disagree.
          Defendant suggests several ways in which a poll
may fail to capture how jurors, in fact, voted: the jury may
not have understood the use of words like “unanimous,”
jurors had no legally significant reason to “record a unan-
imous verdict,” and jurors may simply raise their hands
when put on the spot by a poll. But most of those concerns do
not apply to this case. Here, the trial court, count-by-count,
asked all jurors who voted “guilty” to raise their hands. No
juror could have misunderstood that simple instruction; the
poll itself gave jurors a reason—and a duty—to record their
votes; and defendant suggests no basis for thinking that any
juror would have given a false answer. More broadly, we are
skeptical that jurors would not understand the word “unan-
imous” or that jurors, however polled, would not respond
honestly. See United States v. Poole, 

 (10th
Cir 2008) (rejecting an argument that jurors would not have
understood the trial court’s use of the word “nullity”).
D. Effect on Deliberations
         With those arguments addressed, we turn to the
argument made by the Clinic as amicus: that the instruc-
tion permitting nonunanimous guilty verdicts may have
affected deliberations, and so cannot be held to be harmless.
Although we considered the Clinic’s arguments above in the
context of whether the instructional error was structural,
there we dealt only with the question whether any potential
Cite as 

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difference in deliberation resulting from the instruction
would make the trial fundamentally unfair. In the harmless
error context, the question before us is whether any differ-
ence in the style of deliberation could have made a difference
to the result in this case. On that question, the fact that no
particular deliberative style is constitutionally required is
not dispositive.
         We are not able to approach this question entirely
as a matter of first impression. In Johnson, when consid-
ering the argument that a nonunanimous verdict violated
the Due Process Clause, the Supreme Court considered and
rejected the defendant’s contention that a lack of unanimity
indicated that the jurors voting to convict could not have
conscientiously voted to convict. The Court gave the follow-
ing reasons for its rejection of the argument:
   “Appellant, in effect, asks us to assume that, when minority
   jurors express sincere doubts about guilt, their fellow jurors
   will nevertheless ignore them and vote to convict even if
   deliberation has not been exhausted and minority jurors
   have grounds for acquittal which, if pursued, might per-
   suade members of the majority to acquit. But the mere fact
   that three jurors voted to acquit does not in itself demon-
   strate that, had the nine jurors of the majority attended
   further to reason and the evidence, all or one of them would
   have developed a reasonable doubt about guilt. We have no
   grounds for believing that majority jurors, aware of their
   responsibility and power over the liberty of the defendant,
   would simply refuse to listen to arguments presented to
   them in favor of acquittal, terminate discussion, and render
   a verdict. On the contrary it is far more likely that a juror
   presenting reasoned argument in favor of acquittal would
   either have his arguments answered or would carry enough
   other jurors with him to prevent conviction. A majority will
   cease discussion and outvote a minority only after reasoned
   discussion has ceased to have persuasive effect or to serve
   any other purpose—when a minority, that is, continues to
   insist upon acquittal without having persuasive reasons in
   support of its position. At that juncture there is no basis for
   denigrating the vote of so large a majority of the jury or for
   refusing to accept their decision as being, at least in their
   minds, beyond a reasonable doubt. * * * Appellant offers no
   evidence that majority jurors simply ignore the reasonable
   doubts of their colleagues or otherwise act irresponsibly
326                                                State v. Flores Ramos

    in casting their votes in favor of conviction, and before we
    alter our own longstanding perceptions about jury behav-
    ior and overturn a considered legislative judgment that
    unanimity is not essential to reasoned jury verdicts, we
    must have some basis for doing so other than unsupported
    assumptions.”
Johnson, 

 (emphasis added).
         In Johnson, the Supreme Court appeared to assume
that, even when the jury was in fact not unanimous, it still
would have deliberated with the same care and to the same
extent as if unanimity were required. A fortiori, the same
presumption would appear to extend to juries that, while
instructed that they could return a nonunanimous guilty
verdict, nevertheless did reach unanimity. As noted above,
Ramos did not address the Due Process Clause arguments
considered in Johnson, and it did not overrule the major-
ity opinion in Johnson. The reasoning of Ramos, based on
text and history, does not call into question the reason-
ing of Johnson. And, though Johnson concerned whether a
nonunanimous verdict violated the Due Process Clause, and
the question here concerns the harmlessness of an error that
did occur, the factual assumption in Johnson is relevant to
both. Johnson therefore still binds us.
         Nevertheless, we read Johnson to establish only
a rebuttable presumption; Johnson faulted the defen-
dant for failing to rebut it, but it did not hold that noth-
ing could. In this case, the Clinic argues that social science
research, post-dating Johnson, demonstrates that instruc-
tions that jurors need not be unanimous do affect deliber-
ations. Principally, the clinic relies on a study documented
in Reid Hastie et al, Inside the Jury (1983).7 In the Hastie
study, 69 mock juries, drawn from actual jury pools, were
asked to render a verdict after watching a taped reenact-
ment of a real trial. Id. at 45-55, 60. A third of the mock
juries needed to be unanimous to reach any verdict, another
third could reach any verdict by a 10-to-two vote, and the
final third could reach any verdict by an eight-to-four vote.
Id. at 60. In analyzing the results, the researchers looked at

   7
      The brief cites multiple other sources; however, many of those sources refer
back to the Hastie study on the pertinent point.
Cite as 

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when the jury first took an internal vote. Juries that polled
themselves within 10 minutes were labeled “verdict-driven.”
Id. at 164. When the first ballot took place after at least
40 minutes of deliberation, the jury was labeled “evidence-
driven.” Id. “Evidence-driven” juries ended up deliberating
for longer than “verdict-driven” juries and the deliberations
involved more connections between facts and legal issues.
Id. Based on the Hastie study, the Clinic argues that an
instruction that jurors do not need to be unanimous “leads
to the likelihood that deliberations are verdict-driven rather
than evidence-driven,” thus producing less reliable (and, as
pertinent here, different) results.
          Even assuming the validity of the Hastie study, and
that it would be appropriate to accord dispositive weight to
a single study, there are three reasons why it does not lend
much support to a conclusion that deliberations in this case
were affected by the erroneous jury instruction. First, the
study found only a weak correlation between unanimity
requirements and whether a jury was “evidence-driven,”
and it is not clear whether the result was statistically signif-
icant. See id. at 173 (“majority rule juries are slightly like-
lier to adopt a verdict-driven deliberation style in contrast to
the evidence-driven style”).
        Second, the Clinic’s theory of how the erroneous
jury instruction was not harmless is not—and cannot be—
just that the instruction may have affected deliberations.
Rather, it is that the potentially altered deliberations could
in turn have affected the jury’s verdicts. But the Hastie
study found “no relationship between [deliberation] style
and final verdict.” Id. at 165.
          Third, the Hastie study did not examine juries, like
the jury in this case, that returned a unanimous verdict
despite being instructed that unanimity was not required
(it is not clear that any of the mock juries reached such a
result), and so it sheds little light on how those juries delib-
erated or whether their unanimous verdicts differed in any
way from those rendered by juries that were instructed that
unanimity was required.
      To be sure, some research shows—contrary to the
Supreme Court’s presumption in Johnson—that juries that
328                                     State v. Flores Ramos

return a nonunanimous guilty verdict may not have given full
consideration to the views of the outvoted jurors. See Brief
of Law Professors and Social Scientists as Amici Curiae in
Support of Petitioner at 6-9, Ramos v. Louisiana, 

,

. In those cases, the nonunanimity instruction
may well exert an influence on both deliberations and the
verdict, and for that reason the research cited by the Clinic
supports our decision to reverse the one nonunanimous ver-
dict in defendant’s case. But the same does not appear to
hold when jurors do, despite not being obligated to, reach a
unanimous verdict. The fact that the verdict is unanimous
provides some assurance, in and of itself, that no juror was
ignored and that all jurors’ reasonable doubts as to those
counts were resolved. Neither the social science research
that has been offered, nor common sense, calls that conclu-
sion into question, much less overcomes the presumption
articulated in Johnson. We therefore conclude that, though
slight differences in deliberative process may have occurred
had the jury been properly instructed, those potential dif-
ferences do not prevent us from concluding that the result
was not affected and that the error was harmless beyond a
reasonable doubt.
E.    Mixed Verdicts
          Defendant also advances a narrower argument—
that, even if the jury’s unanimous verdicts were not directly
affected by the erroneous jury instruction, those verdicts
could still have been indirectly affected. Defendant argues
that “it is certain that the instructional error affected delib-
erations because the jury was not 12-0 on every count.”
(Emphasis in original.) That is, had the jury been properly
instructed, it would have continued deliberating past the
point at which it returned its verdict on the attempted first-
degree rape charge, because two jurors still favored acquit-
tal on that charge.
         The ultimate question in this case, however, is not
whether further deliberation on the attempted rape count could
have led to a different result as to that count, but whether we
can conclude, beyond a reasonable doubt, that the jury’s deci-
sions on the other counts were unaffected. We know from the
jury poll that, as to the other four counts, the jury—including
Cite as 

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the two jurors who would have acquitted defendant on the
attempted first-degree rape count—unanimously agreed that
defendant was guilty beyond a reasonable doubt.

         That fact lends strong support to a conclusion that
the instructional error was harmless as to the unanimous
verdicts. As the Supreme Court has explained, the harm-
less error analysis proceeds on the assumption “that the
jury considered all the evidence bearing on the issue in
question before it made the findings on which the verdict
rested,” except in cases where the instructions precluded the
jury from doing so. Yates v. Evatt, 

, 

, 

 (1991), overruled in part on other
grounds by McGuire, 

. Here, the jury was prop-
erly instructed on the elements of each count, the beyond-a-
reasonable-doubt standard, its “duty to weigh the evidence
calmly and dispassionately,” and its obligation to “return a
verdict of not guilty if, after careful and impartial consider-
ation of all the evidence in the case, you are not convinced
to a moral certainty that the defendant is guilty.” Giving
appropriate weight to the “almost invariable assumption of
the law that jurors follow their instructions,” Marsh, 

, the fact that the jury returned unanimous verdicts
on four counts tells us that each juror, after considering all
of the evidence, was convinced beyond a reasonable doubt of
the defendant’s guilt on those counts. We see no nonspecu-
lative basis for supposing that further deliberation on those
counts, based on the same evidence and among jurors who
already had unanimously agreed that defendant was guilty,
would have led jurors to change their minds. And defen-
dant’s argument requires even more—a supposition that
further deliberation on a different count would have shaken
jurors’ confidence in the unanimous verdicts that they had
already reached.

          The abstract possibility that a juror could have
changed his or her mind after further deliberation is insuf-
ficient to prevent us from concluding that the instructional
error was harmless beyond a reasonable doubt. The Supreme
Court addressed a similar argument in Harrington, 

. In that case, the Court considered whether a violation
of the Bruton rule—the introduction of two codefendant
330                                                  State v. Flores Ramos

confessions implicating the defendant at a joint trial—was
harmless. 

. The defendant had argued that the
Court “must reverse if [the Court] can imagine a single
juror whose mind might have been made up because of [the
codefendants’] confessions and who otherwise would have
remained in doubt and unconvinced.” 

. But the
Court rejected that interpretation of the Chapman stan-
dard: “We of course do not know the jurors who sat. Our
judgment must be based on our own reading of the record
and on what seems to us to have been the probable impact
of the two confessions on the minds of an average jury.” 

Thus, even if we can imagine a juror changing his or her
mind because of further deliberations on a different charge,
that merely conceivable possibility, though significant in
the double jeopardy context, does not preclude us from find-
ing that the error is harmless beyond a reasonable doubt.
“To set a barrier so high that it could never be surmounted
would justify the very criticism that spawned the harmless-
error doctrine in the first place[.]” Neder, 

.
         Defendant cites no authority for the proposition
that a possibility so slim of a different result precludes a
finding that an error was harmless beyond a reasonable
doubt.8 The absence of authority on that point is notable,
    8
       The only decision that could be read to lend support to defendant’s position
is Blueford v. Arkansas, 

, 

, 

(2012), a case that did not involve a harmless error question. In Blueford, the
defendant was charged with capital murder and several lesser-included homicide
offenses. 

. The jury was instructed that it could consider each lesser-
included offense only after concluding that the defendant was not guilty of all
greater-inclusive offenses. 

 After several hours of deliberation, and a reported
deadlock, the foreman reported that the jury had unanimously voted to acquit
the defendant of capital murder and first-degree murder but was deadlocked on
manslaughter. 

. The trial court had the jury deliberate for another
half hour and ultimately declared a mistrial, discharging the jury without any
further polling or verdict. 

.
    The defendant argued to the Supreme Court that the Double Jeopardy Clause
barred his retrial for capital murder and first-degree murder, because he had
been acquitted on those charges in the first trial. The Court disagreed, holding
that the poll conducted by the trial court lacked the finality necessary to con-
stitute a verdict of acquittal. 

. The Court explained that the jury “was
free to reconsider a greater offense, even after considering a lesser one” and that
one or more jurors could have reconsidered their views on the greater-inclusive
offenses after further deliberation about the manslaughter charge. 

.
But the question before the Court in Blueford was meaningfully different from
the question before us in this case. In Blueford, the question of finality for double
jeopardy purposes turned only on whether the jury could have reconsidered its
Cite as 

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because the possibility of extended deliberations on a dif-
ferent offense presents a situation no different from any
time that an error affects one count in a multicount case.
For example, if evidence relevant to only one count is erro-
neously admitted against the defendant, it will be possible
that deliberations as to that count would have been pro-
longed had the evidence been properly excluded. Similarly,
an instructional error as to one count—misdescribing or
omitting an element, for example—may shorten deliber-
ations on that count. Defendant’s theory would be just as
applicable in those cases as it would be here, as any further
deliberation on any count would bring into play the abstract
possibility that a juror could change his or her mind about
a different charge. In effect, defendant’s position appears to
be that any time reversible error is found as to one count,
all other convictions must be reversed, unless, perhaps, they
are supported by overwhelming evidence.
         Defendant’s argument would require a substantial
break from past practice. Although we have never expressly
considered defendant’s argument before, we have sustained
convictions in several cases in which defendant’s position
would have required reversal. For example, in State v. Boots,

, 

 (1989), two theories of
aggravated murder were submitted to the jury, and the jury
was instructed that it did not need to unanimously agree on
a theory of aggravation to convict the defendant of aggra-
vated murder. We held that that failure to require unanim-
ity on the elements of the crime violated Article I, section 11.

. However, we reversed only the defendant’s convic-
tion on aggravated murder, permitting the state the option
of retaining the murder conviction, as to which the jury
had necessarily reached unanimous agreement. 

.
The likelihood that a properly instructed jury would have
deliberated longer, and could conceivably have reached a
different result on the murder conviction, did not feature in
the analysis. As we explained, in a second appeal after our
remand, “an error-free conviction of a criminal offense need
not be retried even though an appellate court has ordered

view. Thus, a purely theoretical possibility that a single juror could have recon-
sidered her view about a different count was enough to prevent the judge’s poll
from representing a final verdict.
332                                    State v. Flores Ramos

a retrial of a greater offense of which the lesser offense is a
lesser-included offense.” State v. Boots, 

, 

 (1993).
         Similarly, in State v. Lotches, 

, 

 (2000), the trial court erred in failing to instruct the
jury about the need for unanimity as to the basis for three
aggravated murder convictions. We determined that, as to
two of the counts, the error was not harmless because the
jury may not have been unanimous as to the basis for each
conviction. 

. With respect to the third count,
however, we determined that the error was harmless because
a different verdict revealed that jury necessarily did agree
on the basis for that conviction. 

. Although a
properly instructed jury may well have deliberated longer
on the other two aggravated murder counts, we did not hold
that those errors required reversal of the third count or of
any of defendant’s other convictions. 

.
         Boots and Lotches admittedly were not decided
under the “harmless beyond a reasonable doubt” standard
applicable to federal constitutional violations, but we see no
indication that that standard must be applied any differ-
ently. In United States v. Russell, 

 (3d Cir 1998),
for example, the defendant was convicted of conducting a
continuing criminal enterprise (CCE) and of conspiracy to
distribute controlled substances. The jury was instructed
that, to return a conviction on the CCE count, it needed to
unanimously find that defendant participated in at least
three violations of federal drug laws but was not told that it
needed to unanimously agree on which violations occurred.

. The court held that the defendant’s right to jury
unanimity had been violated and held, under the Chapman
standard, that the error was not harmless as to the CCE
count. 

. But the court nonetheless affirmed defen-
dant’s conspiracy conviction. 

. See also State v.
Charboneau, 

, 

 (1996) (finding
errors harmless as to some counts but not others under the
Chapman standard).
        And in Benton v. Maryland, 

, 

, 

 (1969), the Supreme Court consid-
ered something of the reverse situation. In that case, the
Cite as 

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defendant had been convicted of burglary and acquitted
of larceny at a single trial. Id. at 785. After an appeal, the
defendant’s burglary conviction was reversed, and the state
retried him—for both burglary and larceny. Id. at 786. The
Court held that retrying the defendant for larceny violated
the Double Jeopardy Clause, as the defendant had already
been tried and acquitted of that offense. Id. at 796. The
defendant also sought reversal of his burglary charge, argu-
ing that “some evidence, inadmissible under state law in a
trial for burglary alone, was introduced in the joint trial for
both burglary and larceny, and that the jury was prejudiced
by this evidence.” Id. at 797. The Court did not adopt a per
se rule that the mere submission of the larceny offense to
the jury, by resulting in additional deliberation on a related
topic, could have affected the verdict on the burglary offense.
Rather, the Court concluded that “[i]t is not obvious on the
face of the record that the burglary conviction was affected
by the double jeopardy violation” and remanded the case to
consider whether the larceny charge had led to consideration
of additional evidence. Id. at 798. Thus, the Court necessar-
ily found that the abstract possibility of an effect on delibera-
tion was insufficient to preclude the finding of harmlessness
beyond a reasonable doubt and indicated that only a direct
effect on the verdict would suffice to require reversal.
         While none of those decisions expressly considered
the argument that defendant advances here, they demon-
strate that the approach to harmless error that defendant
would have us adopt—a view that any change that would
have lengthened jury deliberations on one count reason-
ably could have affected the verdict on any count—would be
inconsistent with prior practice, in this court and in others.
For the reasons given above, the possibility that the jury
would have reached a different result on the unanimous
counts because of further deliberation on the attempted
rape count is too remote to persuade us that the error that
occurred in this case was not harmless beyond a reasonable
doubt.
                     V. CONCLUSION
         Because the jury failed to reach a unanimous guilty
verdict on count three, attempted first-degree rape, we reverse
334                                  State v. Flores Ramos

defendant’s judgment of conviction as it pertains to that
crime. However, as to the unanimous guilty verdicts on all
other counts, we conclude that the trial court’s instruction
to the jury that it could return a nonunanimous verdict did
not amount to a structural error and was harmless beyond
a reasonable doubt. We therefore affirm the judgment as to
defendant’s other convictions.
         The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.