State v. Yother

                                 563

      Submitted June 12, 2020, reversed and remanded April 7, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  DAIN ROGER YOTHER,
                    Defendant-Appellant.
                 Marion County Circuit Court
                    18CR76331; A170225
                             

  Susan M. Tripp, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Egan, Chief Judge, and Shorr, Judge.
  PER CURIAM
  Reversed and remanded.
564                                            State v. Yother

          PER CURIAM
          Defendant was convicted by jury verdict of felon in
possession of a firearm, ORS 166.270. Although he raised
no issue in his opening brief on appeal, see State v. Balfour,

, 

 (1991), in a supplemental brief, he
asserts that the trial court erred in instructing the jury that
it could return a nonunanimous verdict. Defendant excepted
to that instruction and asked that the jury be instructed that
it needed to be unanimous. After the jury returned a guilty
verdict, the court asked defense counsel if he wished to poll
the jury, and counsel declined. As the state acknowledges,
the trial court’s instruction to the jury was erroneous under
Ramos v. Louisiana, 

, 

, 

 (2020), in which the court held that nonunanimous
jury verdicts violate the Sixth Amendment to the United
States Constitution. The state suggests, however, that this
was not reversible error because “defendant failed to make
a sufficient record to show that he actually was prejudiced
by the instructional error,” given that he did not have the
jury polled. In this case, defendant preserved his claim of
error by objecting to the erroneous instruction. This case
is not, as the state suggests, controlled by State v. Dilallo,

, 

 (2020), in which the court
concluded that although the trial court plainly erred in giving a nonunanimous jury instruction, it would not address
the error as plain error where the defendant did not object
to the jury instruction and the jury was not polled. Rather,
as we explained in State v. Scott, 

,

 (2021), when the unanimous verdict instruction issue has been preserved and the erroneous instruction
given, it is then incumbent on the party receiving the benefit of the constitutional error—the state—to demonstrate
harmlessness beyond a reasonable doubt. In this situation,
the burden is not on defendant to demonstrate that the error
was harmful, but on the state to demonstrate that the error
was harmless beyond a reasonable doubt. 

 (citing cases concerning federal constitutional error standard).
Given the lack of a jury poll in this case, the state is unable
in the present case to demonstrate that the error was harmless beyond a reasonable doubt.
        Reversed and remanded.