State v. Ovalle ( 2020 )

356
Submitted February 25; convictions on Counts 2, 3, and 4 reversed and
remanded, remanded for resentencing, otherwise affirmed April 1; petition for
review denied August 27, 2020 (366 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA OVALLE,
Defendant-Appellant.
Washington County Circuit Court
17CR66194; A167970
463 P3d 610
Andrew Erwin, Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
PER CURIAM
Convictions on Counts 2, 3, and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 303 Or App 356 (2020) 357
PER CURIAM
Defendant appeals a judgment of conviction for
sexual offenses committed against his girlfriend’s minor
daughter, advancing two assignments of error. First, he
argues that the trial court erred in admitting an audio
recording between the victim and a detective because the
state provided insufficient notice of intent to offer it under
OEC 803(18a)(b). We reject that assignment without discus-
sion. Second, he argues that the court erred in receiving the
verdict with respect to three counts, because, among other
things, the court failed to comply with ORCP 59 G(1). The
state concedes that error and, as explained below, we agree.
Defendant was charged with six offenses: first-
degree rape (Count 1); first-degree criminal mistreatment
(Count 2); two counts of first-degree sexual abuse (Counts
3 and 4); and two counts of first-degree sodomy (Counts 5
and 6). Jury deliberations began on a Friday. Late in the
afternoon, the jury indicated that it reached a verdict on
Counts 2, 3, and 4, but otherwise was deadlocked on the
remaining counts. The trial court elected to give the jury a
folder to seal all six of the verdict forms and to have them
return the following Monday to continue deliberations.
One of the jurors had a trip scheduled and was
unavailable on Monday, and, before the jury was sent home
on Friday, the parties agreed to have an alternate juror serve
instead. Over the weekend, another juror suffered a death
in the family, and the trial court released her from service.
At that point, defendant objected to the court receiving the
verdicts on Counts 2, 3 and 4, contending that the installa-
tion of the alternates required the jury to begin deliberating
anew, in part because he had not had the opportunity to poll
the previous jury. The court rejected defendant’s arguments,
received the verdicts on Counts 2, 3, and 4, and instructed
the reconstituted jury to deliberate on Counts 1, 5, and 6.
The reconstituted jury found defendant not guilty on Count
1 and guilty on Counts 5 and 6.
On appeal, defendant challenges only his resulting
convictions on Counts 2, 3, and 4, arguing that the trial
court’s process violated ORCP 59 F and G(1), (3), (4), and (5),
358 State v. Ovalle
made applicable to criminal trials by ORS 136.330(1). The
state concedes that the process violated ORCP 59 G(1), which
provides that, “[w]hen the jurors have agreed upon their ver-
dict, they shall be conducted into court by the officer hav-
ing them in charge. The court shall inquire whether they
have agreed upon their verdict. If the foreperson answers in
the affirmative, it shall be read.” The state is correct. The
court’s process ultimately deprived defendant of his well-
established right to have the jury polled on Counts 2, 3,
and 4. Brooks v. Gladden, 226 Or 191, 193, 358 P2d 1055(1961); State v. Lewis, 18 Or App 206, 208-11, 524 P2d 1231(1974) (reversing and remanding for new trial because trial
court’s use of anonymous jury polling procedure violated the
defendant’s “absolute right” to have the jury polled).
Convictions on Counts 2, 3, and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.