State v. Kincheloe

                                      335

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.
             CHARLES WESLEY KINCHELOE,
                    Petitioner on Review.
          (CC 17CR48475) (CA A167760) (SC S067611)
                                   

    At defendant’s trial, the jury was instructed that it could return nonunani-
mous guilty verdicts. The jury returned three guilty verdicts, two of which were
unanimous and one of which was nonunanimous. The Court of Appeals affirmed
defendant’s convictions. Held: (1) Under State v. Flores Ramos, 

, 

 (2020), the instructional error was harmless beyond a reasonable doubt
as to the convictions based on unanimous verdicts, so those convictions must
be affirmed; and (2) under State v. Ulery, 

, 

 (2020), the
conviction based on the nonunanimous verdict must be reversed, regardless of
whether defendant preserved an objection.
    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 briefs were
Ernest G. Lannet, Chief Defender, and Joshua B. Crowther,
Deputy Public Defender.
   Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
Also on the brief were Ellen F. Rosenblum, Attorney, General,
Benjamin Gutman, Solicitor General, and Christopher A.
Perdue, Assistant Attorney General.
______________
    * On appeal from Jackson County Circuit Court, Timothy Barnack, Judge.

, 

 (2020).
336                                       State v. Kincheloe

    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.
Cite as 

 (2020)                                                   337

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

, 

, 

(2020), which held that the Sixth Amendment requires a
jury to be unanimous in order to convict a defendant of a
serious offense.
          Defendant was charged with several offenses,
including first-degree rape, first-degree sodomy, and fourth-
degree assault. Defendant’s case was tried to a 12-person
jury in 2018, prior to the Supreme Court’s decision in Ramos.
While formulating jury instructions, the trial court asked
defendant whether he wished to object to the instruction
that the jury could return a nonunanimous verdict, stating,
“All the defense attorneys are doing that now.” Defense coun-
sel responded, “That’s fine.” There was no further discussion
of the issue. The jury was instructed that “10 or more jurors
must agree on the verdict.” The jury found defendant guilty
of first-degree rape, first-degree sodomy, and fourth-degree
assault. Defendant requested that the trial court poll the
jury. The trial court conducted the poll by distributing slips
of paper to each juror. On each slip, under the words “I voted
for this verdict,” were the words “Yes” and “No,” accompa-
nied by lines for jurors to mark. The poll revealed that the
jury had unanimously convicted defendant of the sodomy
and assault charges but that it had divided 11 to one on the
rape count.
          Defendant appealed, assigning error to the non-
unanimous jury instruction and to the receipt of the non-
unanimous verdict.1 Defendant conceded that he had not
preserved that assignment of error, and he asked the Court
of Appeals to conduct plain error review. In a decision issued
before the Supreme Court’s decision in Ramos, the Court of
Appeals affirmed defendant’s convictions without opinion.
State v. Kincheloe, 

, 

 (2020).
          Defendant filed a petition for review, which, after
the Supreme Court decided Ramos, we allowed. Defendant
    1
      Defendant raised another assignment of error concerning the denial of a
motion for a judgment of acquittal on one count, but that issue is beyond the lim-
ited scope of the question that we allowed review to address.
338                                         State v. Kincheloe

argues that Ramos requires that all his convictions, includ-
ing the two convictions based on unanimous verdicts, be
reversed. As to those latter convictions, he first contends
that the nonunanimous jury instruction was a structural
error, which always requires reversal. In the alternative,
he argues that, even if the error is subject to a harmless-
ness analysis, the poll of the jury is insufficient to establish
that the jury instruction was harmless beyond a reasonable
doubt. See Chapman v. California, 

, 

,

 (1967) (establishing the “harmless beyond a
reasonable doubt” standard for harmless error for federal
constitutional violations). In addition, defendant argues that
his challenge to the nonunanimous jury instruction quali-
fies for plain error review, and that this court should reverse
defendant’s convictions regardless of whether he objected to
the jury instruction in the trial court.
         The state concedes that defendant’s single convic-
tion based on a nonunanimous verdict must be reversed,
but it argues that the instructional error is harmless with
respect to the two convictions based on unanimous verdicts.
         One additional wrinkle has emerged. In the Court
of Appeals, defendant conceded that he had not preserved
his assignment of error. In his briefing in this court, though,
defendant argues that his exchange with the trial court was
sufficient to preserve an objection to the nonunanimous jury
instruction. The state appears to concede that defendant
preserved his assignment of error.
         Our decision in State v. Flores Ramos, 

,

 (2020), also issued today, resolves nearly all
the questions in this case. In Flores Ramos, the defendant
made identical arguments that the jury instruction permit-
ting nonunanimous verdicts was structural error and that
it could not be held harmless error even if it were subject to
a harmlessness analysis. 

. Flores Ramos held
that instructing the jury that it could return a nonunani-
mous guilty verdict was not a structural error. 

. It
also held that, where the jury poll reveals that the jury unan-
imously found the defendant guilty of the charged offense,
the nonunanimous jury instruction can be held harmless
beyond a reasonable doubt. 

. Flores Ramos rejected
Cite as 

 (2020)                                 339

the defendant’s narrower argument that, where the jury
returned both unanimous and nonunanimous guilty ver-
dicts, the instructional error could not be held harmless
as to the unanimous verdicts because the jury’s delibera-
tion would have been cut short. Id. at 333-34. And we also
rejected the defendant’s argument that a jury poll could
not reliably show that the jury’s verdict was unanimous.
Id. at 324.
          The principal difference between this case and
Flores Ramos is the possible lack of preservation. However,
whether defendant preserved a challenge to the nonunani-
mous jury instruction is not, in light of Flores Ramos, a dis-
positive question in this case. Even assuming that defendant
preserved an objection to the jury instruction, we conclude
that that error was harmless as to the two convictions
based on unanimous verdicts, for the same reasons that we
affirmed the convictions based on unanimous verdicts in
Flores Ramos. We therefore affirm defendant’s convictions
for first-degree sodomy and fourth-degree assault without
deciding whether defendant adequately preserved an objec-
tion to the nonunanimous jury instruction.
         As to defendant’s nonunanimous conviction for
first-degree rape, we would reverse that conviction even
if defendant had failed to preserve an objection. The trial
court plainly erred in receiving that verdict. See State v.
Ulery, 

, 

 (2020) (holding that receipt
of a nonunanimous guilty verdict for a nonpetty offense con-
stitutes plain error in light of Ramos). As we explained in
Ulery, the receipt of a nonunanimous guilty verdict is the
type of plain error that an appellate court should exercise its
discretion to review, and it is an error that cannot be found
harmless. 

. Therefore, again without addressing
whether defendant preserved his assignment of error, we
reverse defendant’s conviction for first-degree rape.
         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.