513
Submitted November 24, 2020, affirmed April 7, petition for review denied
August 26, 2021 (368 Or 514)
STATE OF OREGON,
Plaintiff-Respondent,
v.
PHILLIP MARK GREGG,
Defendant-Appellant.
Douglas County Circuit Court
18CR67108; A170770
484 P3d 1120
A jury found defendant guilty of rape in the first degree, ORS 163.375.
Although the jury had been instructed that it could reach a guilty verdict by a 10
to 2 vote, defendant did not object to that instruction and, in any event, the jury
returned a unanimous verdict, confirmed by jury poll. Defendant appeals his conviction, arguing that the trial court erred by (1) denying his motion for a mistrial
and (2) instructing the jury that it could return a nonunanimous jury verdict.
As to his second assignment of error, he argues that the nonunanimous jury
instruction constitutes a structural error, which categorically requires reversal.
In the alternative, he argues that, on the record in this case, the instruction
was not harmless beyond a reasonable doubt. He also concedes that the issue is
unpreserved but that the Court of Appeals should exercise its discretion to review
the instruction for plain error. Held: Defendant’s first assignment of error was
rejected without discussion. Regarding defendant’s second assignment of error,
the Court of Appeals concluded that (1) the trial court erred when it instructed
the jury that it could return a nonunanimous guilty verdict, State v. Flores
Ramos, 367 Or 292,
478 P3d 515 (2020); (2) the error was neither structural nor
preserved; (3) the error was plain; but (4) it was nevertheless harmless, as demonstrated by the jury poll.
Affirmed.
Ann Marie Simmons, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Dashiell L. Farewell, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Affirmed.
514 State v. Gregg
MOONEY, J.
A jury found defendant guilty of rape in the first
degree, ORS 163.375. Although the jury had been instructed
that it could reach a guilty verdict by a 10 to 2 vote, defendant did not object to that instruction and, in any event,
the jury returned a unanimous verdict, confirmed by jury
poll. Defendant appeals, raising two assignments of error.
We reject defendant’s first assignment, directed to the trial
court’s denial of his motion for mistrial, without discussion.
Defendant’s second assignment of error is directed to the
court’s instruction to the jury that it could reach a guilty
verdict by nonunanimous vote. We conclude that (1) the
court erred when it instructed the jury that it could return
a nonunanimous guilty verdict, State v. Flores Ramos, 367
Or 292,
478 P3d 515 (2020); (2) the error was neither structural nor preserved; (3) the error was plain; but (4) it was
nevertheless harmless, as demonstrated by the jury poll.
We, therefore, affirm.
Defendant advances two arguments regarding
the nonunanimous jury instruction. First, he argues that
instructing the jury that it could return a nonunanimous
verdict constitutes structural error, which categorically
requires reversal. Second, he contends that, even if the
instruction does not constitute structural error, it was not
harmless, because we cannot say with certainty that “the
10-2 instruction did not affect the deliberations and verdict in a significant way.” In addition, defendant concedes
that the issue is unpreserved but argues that we should
exercise our discretion to review the instruction for plain
error.
The Oregon Supreme Court’s Flores Ramos decision
addresses defendant’s arguments for the most part. The
court concluded that instructing a jury that it could reach a
nonunanimous verdict is not structural error that requires
reversal in every case. 367 Or at 319. The court also held
that, where the jury poll indicates that the verdict was
unanimous, the instructional error is harmless beyond reasonable doubt.
Id. at 320. The court rejected the argument
that the jury poll could not reliably show that the error did
not affect the verdict.
Id. at 324.
Cite as
310 Or App 513 (2021) 515
Defendant’s argument in the case before us differs
somewhat from the arguments rejected in Flores Ramos
with respect to how the offending jury instruction may have
affected the jury’s deliberation. Here, the judge confirmed
that the jury verdict was 12 to 0. Then, after polling the
jury, the trial court discharged the jury and then made this
statement for counsel and the parties to clarify that the final
verdict was unanimous even if there was some vacillation on
the part of one juror during deliberations:
“So I will just let the parties know, because I didn’t want
to, I just wanted to hear it very clear from the jurors and
their mouths, rather than trying to triangulate about it.
But I think the foreperson was concerned that somebody
was changing their mind. And not that it was changing the verdict because it was still going to be an 11 to 1
verdict which is why I orally polled them in this case.
So if you have any questions, you can certainly direct
them to me or my Clerk but that’s all that I have at this
point.”
Based on that comment, defendant contends that “there was
some discussion of whether a juror had changed her mind,
indicating some amount of struggle to reach a verdict and
possibly a juror’s abandonment of a not-guilty vote in the
face of its futility.”
Our plain error review involves a two-part inquiry.
First, we must determine whether the unpreserved assignment of error qualifies as plain error. In order for an error to
be plain, “it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among competing inferences.” State
v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013).
Second, if all of those requirements are satisfied,
we then must determine whether to exercise our discretion
“to consider or not to consider the error.” Ailes v. Portland
Meadows, Inc., 312 Or 376, 382,
823 P2d 956 (1991). Our
decision to exercise discretion “should be made with utmost
caution,” considering that “[s]uch action is contrary to the
strong policies requiring preservation and raising of error.”
Id. In making that decision, we consider the following nonexhaustive list of factors:
516 State v. Gregg
“[T]he competing interests of the parties; the nature of the
case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention;
and whether the policies behind the general rule requiring preservation of error have been served in the case in
another way, i.e., whether the trial court was, in some manner, presented with both sides of the issue and given an
opportunity to correct any error.”
Id. at 382 n 6.
We agree with, and accept, the state’s concession
that the trial court plainly erred when it gave the nonunanimous jury instruction. That instruction was an error of
law because it violated defendant’s rights under the Sixth
Amendment to the United States Constitution. Flores
Ramos, 367 Or at 294. Because the instructional error is
apparent on the record and not in reasonable dispute, we
conclude that it is plain error and turn to the question of
whether we should exercise discretion to review that error.
In two recent cases, the Oregon Supreme Court
considered whether to exercise its discretion to correct the
trial court’s error in giving a nonunanimous verdict instruction where the defendant did not object to the instruction,
and thus failed to preserve the issue. In State v. Chorney-Phillips, as here, a poll of the jury revealed that the verdict
was unanimous. 367 Or 355, 357,
478 P3d 504 (2020). On
appeal, the defendant argued that his conviction required
reversal because, inter alia, the polling was insufficient to
establish that the instructional error was harmless beyond
a reasonable doubt.
Id. at 357-58. The court declined to
exercise its discretion to correct that error.
Id. at 359. It
explained that, because the defendant told the trial court
that he was satisfied with the poll, “neither the state nor
the trial court was alerted to the possible need to further
develop the record, and ‘an important purpose of the preservation requirement was not served[.]’ ”
Id. (quoting State
v. Dilallo,
367 Or 340, 347,
478 P3d 509 (2020) (brackets in
Chorney-Phillips)). Similarly, in Dilallo, the court declined
to exercise its discretion to correct the unpreserved instructional error where the jury was not polled. 367 Or at 349.
The court explained that, as a result of the defendant’s failure to object, the state was not put on notice of the need
Cite as
310 Or App 513 (2021) 517
to request a jury poll and to further develop the record.
Id. at 347.
Here, we decline to exercise our discretion to review
the trial court’s instructional error. First, our consideration
of the “gravity of the error” weighs against defendant. The
jury poll revealed that the verdict was unanimous, which
suggests that the error was not “grave.” Cf. State v. Ulery,
366 Or 500, 504,
464 P3d 1123 (2020) (determining that
the instructional error was “grave” given the fact that the
jury’s verdict was nonunanimous). Second, as mentioned
in Dilallo, one of the purposes of the preservation requirement is to ensure that opposing parties are put on notice of
the need to further develop the record. 367 Or at 347. But
that is not what happened here. And because the error was
not “grave,” we decline to exercise our discretion to review
defendant’s unpreserved assignment of error.
Affirmed.
