State v. Doyle

                                  223

 Submitted on remand from the Oregon Supreme Court July 12, reversed and
                       remanded September 1, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     ERIC PAUL DOYLE,
                     Defendant-Appellant.
                   Lane County Circuit Court
                      201503402; A160738
                              

  On remand from the Oregon Supreme Court, State v.
Doyle, 

, 

 (2021).
   Karrie K. McIntyre, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the briefs for respondent.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
   PER CURIAM
   Reversed and remanded.
224                                                State v. Doyle

         PER CURIAM
         This case is before us a second time. In State v.
Doyle, 

, 

 (2019) (Doyle I), defendant appealed his conviction for first-degree sexual abuse,
challenging the trial court’s rulings that precluded admission of certain evidence and denied defendant’s requested
jury instruction on unanimous verdicts. We rejected all of
defendant’s arguments, writing only to address defendant’s
evidentiary claims. The Supreme Court granted defendant’s
petition for review, vacated our opinion, and remanded for
us to reconsider our decision in light of Ramos v. Louisiana,

, 

, 

 (2020). State v.
Doyle, 

, 

 (2021) (Doyle II). Considering
the change in the law from Ramos, we now reverse defendant’s conviction on that basis. Nonetheless, because the
same evidentiary issues are likely to arise on remand,
we adhere to the balance of Doyle I and reject defendant’s
remaining assignments of error.
        A full recitation of the facts was previously provided
in Doyle I. We restate the following facts only as necessary
to understand defendant’s jury instruction claim and our
decision to address and adhere to our prior decision related
to defendant’s evidentiary claims.
        Defendant was charged with sexually abusing F,
who was the eight-year old daughter of defendant’s friends
(F’s mother and stepfather). Doyle I explained:
      “Before trial, the state sought to preclude defendant from
   confronting F with evidence that she had previously made
   several false accusations of sexual abuse, and the court held
   a hearing outside the presence of the jury to evaluate that
   evidence. In particular, defendant sought to cross-examine F
   about prior accusations of sexual abuse against her brothers,
   father, and stepfather. Defendant argued that [the evidence
   was admissible,] in accordance with the criteria for admission under [State v.] LeClair, [

, 

   (1986), rev den, 

 (1987)][.]”
298 Or App at 713-14 (footnote omitted). After a hearing,
“the court rejected defendant’s LeClair arguments, ruling
that defendant would not be permitted to cross-examine F
on past sexual abuse accusations.” Id. at 718.
Cite as 

 (2021)                                             225

          Before trial, defendant filed a motion requesting that
the jury be instructed that it must reach a unanimous verdict to convict. The trial court rejected that motion, instructing the jury that it could convict if “10 or more jurors” agreed
on the verdict. After the jury was so instructed, defendant
again objected. The jury convicted defendant of first-degree
sexual abuse.1 Both parties declined the trial court’s request
to poll the jury.
         Defendant appealed his conviction, arguing that
the trial court erred in precluding him from confronting F
at trial with evidence that she had falsely accused others
of sexual abuse. Defendant also argued that the Sixth and
Fourteenth Amendments to the United States Constitution
requires unanimous jury verdicts and failure to give such
an instruction constitutes structural error. As noted, we
rejected both arguments and affirmed. Doyle I, 298 Or App
at 713 n 1, 720-24.
        Defendant sought review of all of our rulings. The
Supreme Court allowed review and vacated our decision and
remanded for us to reconsider our decision in light of the
change in the law from Ramos.
         Beginning with defendant’s jury instruction claim,
we now conclude that the trial court erred in instructing the
jury that it could convict based on a nonunanimous verdict.
See Ramos, 590 US at ___, 

 (holding that
the Sixth Amendment to the United States Constitution
requires a jury to be unanimous to convict of a serious
offense). However, we reject defendant’s argument that the
error constitutes structural error. State v. Flores-Ramos,

, 

 (2020). Nonetheless, because
there was no jury poll and the state is unable to demonstrate
that the error is harmless beyond a reasonable doubt, the
error requires reversal. See State v. Scott, 

, 

 (2021) (explaining that, when the unanimous jury instruction issue has been preserved, it is incumbent upon the state, who is the beneficiary of the error, to
establish that the error was harmless beyond a reasonable
doubt).

   1
       Defendant was acquitted of first-degree unlawful sexual penetration.
226                                           State v. Doyle

         We turn to defendant’s remaining assignments of
error challenging the trial court’s evidentiary rulings prohibiting defendant from cross-examining F about alleged
prior false accusations of sexual abuse. Because those issues
are likely to arise on remand, it is appropriate for us to
reach those issues. And, for all of the reasons expressed in
the opinion, we adhere to our decisions in Doyle I on those
issues and reject defendant’s arguments.
        Reversed and remanded.