State v. Minton

                                 412

  Submitted March 28; conviction for harassment reversed and remanded,
      remanded for resentencing, otherwise affirmed April 27, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                TYLER DOUGLAS MINTON,
                   Defendant-Appellant.
                Umatilla County Circuit Court
                   20CR06443; A174483
                              

  Daniel J. Hill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel C. Duran, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and, E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  PER CURIAM
  Conviction for harassment reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                              413

        PER CURIAM
         Defendant appeals his convictions, based on unanimous jury verdicts, for interference with making a report,
ORS 165.572; harassment, ORS 166.065; and third-degree
criminal mischief, ORS 164.345. He raises three assignments of error on appeal. As explained below, he is correct
that the trial court erred in all three respects. We therefore
reverse and remand his conviction for harassment, remand
for resentencing, and otherwise affirm.
         A lengthy description of the underlying facts would
not benefit the bench, the bar, or the public. Suffice it to say
that the charges involved a dispute between defendant and
his mother, and defendant raised a defense of self defense by
pretrial notice as allowed by ORS 161.055(3). At trial, when
defendant requested a self-defense jury instruction, the court
declined to give it, because defendant had not presented evidence. The state concedes that that was error, and we accept
the concession. Because defendant raised the defense by
pretrial notice, he was not required to raise the defense by
presenting affirmative evidence. State v. Freeman, 

, 

 (1991); ORS 161.055(1) (“When
a ‘defense,’ other than an ‘affirmative defense’ as defined in
subsection (2) of this section, is raised at a trial, the state
has the burden of disproving the defense beyond a reasonable doubt.”). Beyond that, defendant’s proposed instruction
correctly stated the law, and the evidence presented supported a self-defense theory. See State v. Wolf, 

, 616, 

 (2017) (“A defendant is entitled to an
instruction on the defense, once raised, provided the request
correctly states the law and there is evidence to support a
self-defense theory.”). The parties also agree that the trial
court’s error affected the harassment conviction but not the
remaining convictions.
         Defendant next argues that the trial court erred in
instructing the jury that it needed to be unanimous for notguilty verdicts as well as guilty verdicts. We agree that that
was error under State v. Ross, 

, 

(2021), as the state acknowledges. The state maintains,
however, that the error was harmless in light of the jury’s
unanimous verdicts. The state is correct that the error was
414                                       State v. Minton

harmless. See State v. Martineau, 

, 

 (2022) (so holding).
         Finally, defendant challenges a condition of probation, both as to its substance and because it was not
announced in open court. The state concedes that the court
erred in failing to announce the condition in open court.
However, given that we must remand the entire case for
resentencing, see ORS 138.257(4), we need not address the
issues related to the challenged probation condition.
       Conviction for harassment reversed and remanded;
remanded for resentencing; otherwise affirmed.