State v. Clark

                                 439

    Submitted November 23, 2020, reversed and remanded May 12, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                ROBERT VINCENT CLARK,
                   Defendant-Appellant.
                Wheeler County Circuit Court
                    150025CR; A169778
                             

   Karen Ostrye, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Reversed and remanded.
440                                                          State v. Clark

           PER CURIAM
         Defendant was convicted by jury verdict of three
counts of first-degree sexual abuse and one count each of
first-degree unlawful sexual penetration and attempted
sodomy. On appeal, defendant argues that the trial court
erred by allowing the forensic interviewer to testify under
OEC 702 as an expert with insufficient foundation to testify
as an expert on issues of memory. We ultimately reverse and
remand on another basis, and we do not reach this argument. Defendant’s other argument is that the trial court
erred in instructing the jury that it need not reach unanimous verdicts; he contends that, because the erroneous
jury instruction constituted a structural error, his conviction must be reversed in light of Ramos v. Louisiana, 

, 

, 

 (2020). While the
Supreme Court rejected the structural error argument in
State v. Flores Ramos, 

, 

 (2020),
our inquiry does not end there.
         In this case, defendant requested in writing and
several times at trial that jury instructions requiring unanimity be provided. The trial court declined to do so over
defendant’s objection. As we explained in State v. Scott,

, 

 (2021), the combination
of request for unanimous jury instruction and objection at
trial was sufficient to preserve the argument for appeal.1 We
further explained that when the unanimous verdict instruction issue has been preserved, it is then incumbent on the
party—in this case the state—receiving the benefit of the
constitutional error to demonstrate harmlessness beyond a
reasonable doubt. 

 (applying the federal harmlessness analysis because the erroneous jury instruction
violated the Sixth Amendment). Because in this case the
jury was not polled, the state cannot demonstrate that the
    1
      In this case, the state argues that defendant failed to preserve his claim
regarding the erroneous jury instruction because he did not request a jury
poll. While it is true the Sixth Amendment prohibits acceptance of or receiving
nonunanimous guilty jury verdicts, State v. Ulery, 

, 

 (2020), the Sixth Amendment also prohibits providing a jury instruction
allowing nonunanimous verdicts. Flores Ramos, 

. As in Scott, the
error in this case was not in accepting a nonunanimous verdict, because without
a poll, it is impossible to ascertain whether the verdict was unanimous; rather
the error lies in providing the instruction allowing nonunanimous verdicts.
Cite as 

 (2021)                           441

erroneous instruction was harmless beyond a reasonable
doubt, and therefore defendant is entitled to relief. Id. at
621.
        Reversed and remanded.