State v. Damper

                                      322

  Submitted October 31, 2018; conviction on Count 1 reversed and remanded,
  remanded for resentencing, otherwise affirmed May 12; petition for review
                    denied August 26, 2021 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  TYRELL DUPREE DAMPER,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      C141222CR; A164662
                                   

     Defendant appeals a judgment of conviction for two counts of promoting prostitution, ORS 167.012, assigning error to, among other things, the trial court’s
(1) instruction to the jury that it could return nonunanimous verdicts for Counts 1
and 2, and (2) receipt of a nonunanimous verdict for Count 1. The state concedes
that, following the United States Supreme Court’s decision in Ramos v. Louisiana,

, 

, 

 (2020), the trial court plainly erred in
accepting a nonunanimous verdict on Count 1, and that defendant is entitled to
reversal and a new trial on Count 1. Held: Regarding the nonunanimous verdict
on Count 1, the Court of Appeals agreed with and accepted the state’s concession
and exercised its discretion to correct that error. Regarding the nonunanimous
jury instruction on Count 2, that erroneous instruction was rendered harmless
by the unanimous verdict on Count 2.
    Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.


   Eric Butterfield, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the opening and supplemental
briefs for appellant. Tyrell Dupree Damper filed the supplemental brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the briefs for respondent.
   Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
   TOOKEY, J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
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 (2021)                                                  323

           TOOKEY, J.
         Defendant appeals a judgment of conviction for two
counts of promoting prostitution, ORS 167.012. He assigns
error to the trial court’s (1) instruction to the jury that
it could return nonunanimous verdicts, (2) receipt of a
nonunanimous verdict for Count 1, and (3) failure to sua
sponte merge the verdicts on Counts 1 and 2 into a single
conviction. We reject defendant’s additional assignments as
noted below.1 For the reasons explained below, we reverse
defendant’s conviction on Count 1 and otherwise affirm.
         The state charged defendant with two counts of promoting prostitution, ORS 167.012. The trial court instructed
the jury that it could reach a nonunanimous verdict on both
counts: “This being a criminal case, ten or more jurors must
agree on your verdict.” After the jury deliberated, the trial
court received a nonunanimous guilty verdict on Count 1,
based on a 10-2 vote, and a unanimous verdict on Count 2.
Defendant later appealed, arguing among other points, that
providing a nonunanimous jury instruction and accepting
a nonunanimous verdict constitute either structural errors
that this court must correct, or alternatively, plain error
that we should exercise our discretion to correct.
         While defendant’s appeal was pending, the Supreme
Court of the United States issued its decision in Ramos v.
Louisiana, 

, 

, 

(2020). In Ramos, the Court concluded that a trial court’s
entry of judgments based on nonunanimous jury verdicts
violates a defendant’s right to a jury trial under the Sixth
Amendment, and that the “Sixth Amendment’s unanimity
requirement” is “incorporated against the States under the
Fourteenth Amendment.” 

 at ___, 

.
        Following the United States Supreme Court’s decision in Ramos, the Oregon Supreme Court explained that
a nonunanimous jury instruction is not a structural error
that categorically requires reversal, State v. Flores Ramos,
    1
      Defendant also assigns error to the trial court’s denial of his motion for
judgment of acquittal on Count 1, and he also assigns error to the trial court’s
failure to deliver a jury-concurrence instruction, or alternatively, to require that
the state elect a theory of guilt as to Count 2. We reject those assignments of error
without written discussion.
324                                          State v. Damper

, 

 (2020), and that where a jury
poll reveals that a verdict was unanimous for each count in
question, the erroneous instruction is “harmless beyond a
reasonable doubt,” State v. Kincheloe, 

, 

 (2020) (citing Flores Ramos, 

). It also
explained that “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.” Kincheloe, 

 (citing State v.
Ulery, 

, 

 (2020)).
         Here, defendant contends that he is entitled to
reversal of his conviction on Count 2 because the trial court
issued a nonunanimous jury instruction. That contention is
unavailing; the erroneous instruction was rendered harmless by the unanimous verdict on Count 2, and we therefore reject that contention for the reasons set forth in Flores
Ramos and Kincheloe.
         As for defendant’s conviction on Count 1, the state
has filed a notice with this court in which it conceded that,
under Ramos, the trial court plainly erred in accepting a
nonunanimous verdict on Count 1, and that defendant is
entitled to reversal and a new trial on Count 1. We agree
and accept the state’s concession and, for the reasons set
forth in Kincheloe and Ulery, we exercise our discretion to
correct the error.
         Our disposition as to Count 1 obviates the need to
address defendant’s remaining assignment of error: that
the trial court erred by failing to merge his guilty verdicts
on Counts 1 and 2 into a single conviction. See, e.g., State
v. Paye, 

, 

 (2021) (reversing convictions for promoting prostitution because guilty
verdicts were not unanimous and concluding that reversal
obviates the need to reach merger argument as to those convictions). Nevertheless, we briefly address merger within
the context of promoting prostitution, ORS 167.012, because
defendant faces the possibility of a retrial on Count 1, and
the issue of merger may arise on remand if he is convicted
again on that count. See State v. Merrill, 

,

 (2021) (“Even when a disposition obviates the
need to address an assignment of error, we may nevertheless
Cite as 

 (2021)                           325

address questions of law that may still be at issue after the
case is remanded.”); State v. Bradley, 

,

 (2021) (same).
         In Paye, we examined how ORS 161.067—the “anti-merger” statute—operates within the context of promoting
prostitution under ORS 167.012. 

. We
explained that, if the guilty verdicts for multiple counts of
promoting prostitution involve (1) the same criminal episode, (2) the same statutory provision, (3) the same victim,
and (4) the conduct underlying those counts is not separated
by a “sufficient pause,” then those verdicts must merge.

. We also explained that “the paragraphs of ORS
167.012(1) are the same statutory provision for purposes of
[the anti-merger statute],” 

, and that “each count
of promoting prostitution involves the same victim—the
public,” 

. Thus, in the instant case, if defendant
is retried and reconvicted on remand, our decision in Paye
would bear on any resulting merger issues.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.