State v. Perales

                                 442

  Argued and submitted January 29, reversed and remanded May 12, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  JUAN PERALES, JR.,
                   Defendant-Appellant.
              Washington County Circuit Court
                   18CR85280; A171813
                             

   D. Charles Bailey, Jr., Judge.
   Morgen E. Daniels, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Peenesh Shah, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Reversed and remanded.
Cite as 

 (2021)                                             443

           PER CURIAM
         Defendant was convicted by jury verdict of firstdegree sexual abuse, fourth-degree assault constituting
domestic violence, strangulation, and menacing constituting domestic violence. On appeal, defendant argues that the
trial court erred by failing to provide a “witness false in
part” jury instruction, such as UCrJI 1029. 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, and 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 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 state, as the party 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 erroneous instruction was harmless beyond

    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.
444                                       State v. Perales

a reasonable doubt, and therefore defendant is entitled to
relief. Id. at 621.
        Reversed and remanded.