State v. Murphy ( 2020 )

844
Argued and submitted September 29; convictions on Counts 2, 3, and 5 through
10 reversed and remanded, otherwise affirmed December 9, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
TYRONE NEIL MURPHY,
Defendant-Appellant.
Washington County Circuit Court
18CR29852; A170011
478 P3d 1018
Theodore E. Sims, Judge.
Andrew D. Robinson, 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.
Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Convictions on Counts 2, 3, and 5 through 10 reversed
and remanded; otherwise affirmed.
Cite as 307 Or App 844 (2020) 845
PER CURIAM
Defendant was convicted of first-degree sodomy,
ORS 163.405, second-degree sexual abuse, ORS 163.425,
and first-degree rape, ORS 163.375. The state had charged
defendant with five counts of first-degree sodomy (Counts 1
through 3, 7, and 8), four counts of second-degree sexual
abuse (Counts 4 through 6 and 11), and two counts of first-
degree rape (Counts 9 and 10). The state dismissed Counts
1 and 4 before trial, the jury found defendant not guilty on
Count 11, and it found defendant guilty of the remaining
counts (Counts 2, 3, and 5 through 10). On appeal, defendant
assigns error to seven of the trial court’s rulings. We reject
without written discussion his second, third, and fourth
assignments of error and write only to address the remain-
ing assignments of error, which involve only two issues: the
denial of defendant’s motion to sever and the jury’s return of
a nonunanimous verdict.
First, we reject defendant’s argument that the trial
court erred in denying his motion to sever. It is not neces-
sary to recount the facts presented at the hearing on the
motion to sever. In short, defendant argued that he was
prejudiced by joinder because some portions of the alleged
victims’ testimony would not be cross-admissible in sepa-
rate trials under OEC 403, and because joinder would inter-
fere with his right to testify regarding some charges, but
not others. With regard to prejudice, defendant concedes
that the evidence was “sufficiently simple and distinct”
to avoid the dangers of prejudice resulting from the join-
der of charges. Because the evidence was admissible for
the nonpropensity purpose of trying joined charges, State
v. Miller, 327 Or 622, 631-34, 969 P2d 1006 (1998), and
because the evidence was “sufficiently simple and distinct
to mitigate the dangers created by joinder,” State v. Buyes,
280 Or App 564, 570, 382 P3d 562 (2016), defendant was
not deprived of the protections afforded by the evidence
code, State v. Gensler, 266 Or App 1, 9, 337 P3d 890 (2014),
rev den, 356 Or 689 (2015). Additionally, defendant was
acquitted of the sole charge for which he sought to testify.
So, even if we assumed that the court erred by not severing
the charges because it would compromise his right against
846 State v. Murphy
self-incrimination,1 the resulting acquittal on that charge
provides no basis for a reversal.
Second, we conclude that the trial court’s accep-
tance of a nonunanimous jury verdict requires reversal and
remand for a new trial. See Ramos v. Louisiana, 590 US
___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (concluding that
nonunanimous jury verdicts violate the Sixth Amendment
to the United States Constitution); State v. Ulery, 366 Or
500, 504, 464 P3d 1123 (2020) (concluding that a trial
court’s acceptance of a nonunanimous verdict constitutes
plain error and that appellate courts should exercise their
discretion to correct that plain error). The state concedes,
and we agree, that the court’s acceptance of nonunanimous
verdicts on each of the convictions constitutes plain error.
For the reasons set forth in Ulery, we exercise our discretion
to correct the error.
Convictions on Counts 2, 3, and 5 through 10
reversed and remanded; otherwise affirmed.
1
We do not decide, one way or the other, whether the trial court so erred on
that basis.