State v. Mott

                                  702

Argued and submitted October 7; convictions on Counts 3 and 4 reversed and
remanded, remanded for resentencing, otherwise affirmed November 17, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
            CHARLES ANTHONY MOTT, JR.,
           aka Charles Mott, aka Charles A. Mott,
                aka Charles Anthony Mott,
                   Defendant-Appellant.
               Jackson County Circuit Court
                   19CR39798; A173631
                               

  Laura A. Cromwell, Judge.
   Laura A. Frikert, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Convictions on Counts 3 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                             703

        PER CURIAM
         After being arrested by a SWAT team, defendant was charged with and found guilty of felony fourthdegree assault constituting domestic violence, ORS 163.160
(Count 2); strangulation constituting domestic violence, ORS
163.187 (Count 3); unlawful use of a weapon, ORS 166.220
(Count 4); menacing constituting domestic violence, ORS
163.190 (Count 5); and interfering with making a report,
ORS 165.572 (Count 6). On appeal, he argues that the trial
court erred by instructing the jury that it could return a
nonunanimous verdict and by receiving nonunanimous verdicts on Counts 3 and 4. He also argues that the court erred
by admitting evidence of his lack of cooperation with police
and of the SWAT team and tear gas deployment that preceded his arrest.
         With regard to defendant’s arguments concerning
jury unanimity, we agree that his convictions on Counts
3 and 4 by nonunanimous verdicts must be reversed and
remanded in light of Ramos v. Louisiana, 

, 

, 

 (2020). However, because the
jury reached unanimous verdicts on the remaining counts,
any error in instructing the jury regarding unanimity was
harmless beyond a reasonable doubt and is not a basis for
reversal of those convictions. See State v. Flores Ramos,

, 

 (2020) (holding that, as to
unanimous guilty verdicts, “the trial court’s instruction to
the jury that it could return a nonunanimous verdict did not
amount to a structural error and was harmless beyond a
reasonable doubt”).
         As for defendant’s evidentiary challenges, “Oregon
courts have long held that evidence of flight is relevant as
circumstantial evidence of guilty knowledge, which is some
evidence of guilt.” State v. Minchue, 

, 

 (2001); see, e.g., State v. Brown, 

, 

 (1962) (“The purpose of the evidence adduced by the
state was to show, after the commission of the crime, flight,
concealment, and use of a false name. These facts, if established, are admissible as evidence of a guilty conscience,
which is some evidence of guilt.”); State v. Brown, 

, 

 (2019), rev’d on other grounds,
704                                              State v. Mott

, 

 (2020) (“The nature and extent of
the actions that defendant took to avoid capture bore on the
extent to which the jury could infer his guilty knowledge.”).
In light of that body of case law, we cannot say that the trial
court erred in concluding that evidence of defendant’s efforts
to avoid arrest and of the law enforcement response was relevant, nor can we say that the court abused its discretion in
concluding that the probative value of the evidence was not
substantially outweighed by the risk of unfair prejudice.
       Convictions on Counts 3 and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.