757
On respondent’s petition for reconsideration filed December 16, 2020; petition
for reconsideration allowed, former opinion (
307 Or App 842,
477 P3d 417)
withdrawn, affirmed March 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTHONY C. NEWTON,
aka Anthony Carl Newton,
Defendant-Appellant.
Multnomah County Circuit Court
17CR79797; A167654
483 P3d 61
The state petitions for reconsideration of State v. Newton, 307 Or App 842,
477 P3d 417 (2020), contending that the Court of Appeals misunderstood the
scope of its concession and request for remand in light of Ramos v. Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020). Specifically, the state argues
that it conceded error only as to the “constituting domestic violence” element of
defendant’s conviction and not to the felony strangulation conviction itself, and
that the Court of Appeals should not have reversed the strangulation conviction
because that verdict was unanimous. Held: The Court of Appeals allowed the
state’s petition for reconsideration and withdrew its former opinion. The court
acknowledged that, because the jury was unanimous on the strangulation conviction, it should not have reversed and remanded the case as to that conviction.
However, the trial court’s amended judgment reflects that defendant was not
convicted of strangulation constituting domestic violence. He was convicted of
strangulation. The Court of Appeals concluded that there was, thus, no reason to
reverse and remand. The court further rejected defendant’s first assignment of
error without discussion.
Petition for reconsideration allowed; former opinion withdrawn; affirmed.
Leslie G. Bottomly, Judge.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, for petition.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
MOONEY, J.
Petition for reconsideration allowed; former opinion withdrawn; affirmed.
758 State v. Newton
MOONEY, J.
The state petitions for reconsideration of our opinion in State v. Newton, 307 Or App 842,
477 P3d 417 (2020),
contending that we misunderstood its earlier concession.
Specifically, the state argues that it had conceded error,
based on Ramos v. Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020) (concluding that convictions for serious offenses based on nonunanimous verdicts violate the
Sixth Amendment to the United States Constitution), only
as to the “constituting domestic violence” element of defendant’s conviction and not as to the underlying crime of felony strangulation, and that we should have remanded for
a limited retrial of the domestic violence element only. We
acknowledge that we misconstrued the state’s concession.
We allow reconsideration and withdraw our former opinion.
As we explain below, the state’s “concession” was to that
part of defendant’s strangulation conviction that constituted
“domestic violence.” But defendant was not convicted of that
crime. He was convicted of felony strangulation without the
additional element of domestic violence, and we affirm that
conviction.
Defendant was charged with felony strangulation
constituting domestic violence.1 ORS 163.187(4) (2017);2 ORS
132.586. The crime was alleged as a felony, on the ground
that it was committed in the immediate presence of the
victim’s minor child.3 See ORS 163.187(4)(a) (elevating the
crime from a Class A misdemeanor to a Class C felony in
that circumstance). When a crime involves domestic violence, the prosecutor may so plead, adding “constituting
domestic violence” to the title of the crime, as it did here.
ORS 132.586(2). “Domestic violence” is defined for that purpose as “abuse between family or household members.” ORS
1
Defendant was also charged with fourth-degree assault constituting
domestic violence, but the court dismissed that count after the jury was unable to
reach a verdict.
2
We refer in this opinion to the 2017 version of ORS 163.187, which was in
effect when defendant committed the conduct at issue. The statute has since been
amended.
3
In 2018, the legislature amended ORS 163.187 to also make strangulation a felony if “[t]he victim is a family or household member, as defined in ORS
135.230, of the person.” See ORS 163.187(4)(c); Or Laws 2018, ch 85, § 1. However,
as noted, those amendments do not apply in this case.
Cite as 309 Or App 757 (2021) 759
132.586(1); ORS 135.230(3). “Abuse,” in turn, is defined, as
relevant here, to mean “[i]ntentionally, knowingly or recklessly placing another in fear of imminent serious physical
injury.” ORS 135.230(1)(b).
Thus, in addition to deciding the elements of felony strangulation, the jury in this case was also required
to determine whether, at the time of the alleged conduct
(1) defendant and the victim were “family or household
members” (defined in ORS 135.230(4)(e)), and (2) defendant
“intentionally, knowingly or recklessly place[d the victim]
in fear of imminent serious physical injury.” The jury was
instructed, over defendant’s objection, that 10 or more jurors
were required to reach a verdict, and that at least 10 of the
same jurors who found defendant guilty of strangulation
must agree to the additional questions necessary to prove
domestic violence. Defendant objected to the nonunanimous
jury instruction and contended that acceptance of even a
unanimous verdict was error, given those instructions.
The jury unanimously found defendant guilty of
felony strangulation. As to the additional domestic violence questions, the jury answered “yes” to the first—by a
nonunanimous vote—but “no” to the second. Thus, in accordance with the jury’s verdict, the trial court ruled that the
state had not proved the “constituting domestic violence”
element,4 and it ultimately entered a judgment of conviction
for felony strangulation without the “constituting domestic
violence” element.5 To be clear, defendant was not convicted
of strangulation constituting domestic violence.
4
The trial court rejected the state’s argument that the elements of strangulation itself include the physical injury element necessary to prove abuse for
purposes of domestic violence.
5
The trial court initially entered a judgment reflecting that defendant had
been convicted of felony strangulation constituting domestic violence, but later
corrected the judgment. The amended judgment was entered after defendant
filed his notice of appeal, but before he filed his opening brief. Nevertheless,
defendant included the earlier, incorrect version of the judgment in the excerpt
of record submitted with his opening brief. The state apparently did not recognize that mistake and, with its partial concession, unwittingly perpetuated it. But the jury’s answers to the additional questions on the verdict form
did not support a finding of domestic violence and the court ultimately did
not convict defendant of felony strangulation constituting domestic violence.
The state’s request that we remand on the domestic violence element is thus
superfluous.
760 State v. Newton
On appeal, defendant raised three assignments
of error. The first challenged the trial court’s failure to
instruct the jury that it must find lack of consent on the
strangulation charge. In his remaining assignments, defendant argued that the court erred in instructing the jury
that it could return a nonunanimous verdict and in accepting a nonunanimous verdict. The state submitted a partial
concession—that is, the state purported to concede that the
trial court erred in accepting the jury’s nonunanimous verdict on the question whether defendant and the victim were
family or household members—and urged us to reverse and
remand on the domestic violence question only. We misread the state’s concession and reversed and remanded on
the strangulation count. We did not reach defendant’s first
assignment of error. On reconsideration, the state again
asks us to reverse and remand as to the domestic violence
element, but to affirm defendant’s conviction for strangulation. Defendant was not convicted of felony strangulation
constituting domestic violence. We therefore allow the state’s
petition for reconsideration, withdraw our former opinion,
reject defendant’s first assignment of error without discussion, and affirm the judgment.
It is clear that the trial court erred in instructing
the jury that it could return a nonunanimous guilty verdict.
Ramos, 590 US at ___, 140 S Ct at 1396-97. However, in State
v. Flores Ramos,
367 Or 292, 319, 334,
478 P3d 515 (2020),
the Oregon Supreme Court explained that, as to unanimous
verdicts, a trial court’s nonunanimous jury instruction did
not amount to structural error and was harmless beyond
a reasonable doubt. That case controls the outcome here.
The jury’s verdict as to the crime of felony strangulation,
ORS 161.187(4), was unanimous. Although the jury was
not unanimous as to one of the two questions necessary for
proving domestic violence, the jury did not ultimately find
defendant guilty of that additional element. The trial court
properly entered a judgment of conviction for felony strangulation. There is nothing to remand. See State v. McKarge,
265 Or App 399, 402,
335 P3d 1279 (2014), rev den,
356 Or
690 (2015) (reversing the defendant’s conviction for fourth-degree assault constituting domestic violence and remanding for entry of judgment of the lesser-included offense of
Cite as
309 Or App 757 (2021) 761
fourth-degree assault where the record was insufficient to
prove the element of “constituting domestic violence” under
ORS 132.586); State v. Sturgeon,
253 Or App 789, 790,
291
P3d 808 (2012) (correcting as plain error trial court’s entry
of judgment of conviction for fourth-degree assault constituting domestic violence where there was no evidence that the
defendant and the victim were family or household members
and instructing the court to enter a judgment of conviction
for fourth-degree assault without that element).
Petition for reconsideration allowed; former opinion
withdrawn; affirmed.
