State v. McClour , 311 Or. App. 473 ( 2021 )

473
Submitted April 6; in Case No. 19CR32373, convictions on Counts 4 and 5
reversed and remanded, remanded for resentencing, otherwise affirmed; in
Case No. 19CR38036, reversed May 19; petition for review denied August 26,
2021 (368 Or 514)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN CASEY McCLOUR,
Defendant-Appellant.
Wasco County Circuit Court
19CR32373, 19CR38036;
A171776 (Control), A171777
492 P3d 139
Defendant appeals judgments in two consolidated cases, Case Nos.
19CR32373 and 19CR38036. In Case No. 19CR38036, defendant assigns error to
the denial of his motion for judgment of acquittal (MJOA) for third-degree theft.
In Case No. 19CR32373, defendant contends that the trial court erred in, among
other things, instructing the jury that it could return nonunanimous verdicts;
accepting the jury’s nonunanimous verdicts on two of the counts, Counts 4 and 5;
and sentencing him under ORS 137.717 on anther count, Count 2. He also assigns
error to the trial court’s overruling of his objection to a statement made by the
prosecutor during closing argument at trial. Held: As the state properly con-
ceded, the trial court erred in denying defendant’s MJOA for third-degree theft
in Case No. 19CR38036. In Case No. 19CR32373, the trial court erred in accept-
ing nonunanimous verdicts on Counts 4 and 5, requiring reversal and remand
on those counts. Consequently, the Court of Appeals did not address defendant’s
challenge to his sentence on Count 2, which was predicated, in part, on his con-
viction on Count 4. Although the court erred in giving a nonunanimous jury ver-
dict instruction with respect to the other counts in Case No. 19CR32373, the error
was harmless because the jury’s verdicts were unanimous on those counts. The
court also did not err in overruling defendant’s objection to the prosecutor’s state-
ment during closing; with respect to the counts not reversed and remanded based
on nonunanimous jury verdicts, any error was harmless.
In Case No. 19CR32373, convictions on Counts 4 and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed. In Case No.
19CR38036, reversed.
Janet L. Stauffer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
474 State v. McClour
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and Lagesen, Presiding
Judge, and DeHoog, Judge.
DeVORE, P. J.
In Case No. 19CR32373, convictions on Counts 4 and 5
reversed and remanded; remanded for resentencing; other-
wise affirmed. In Case No. 19CR38036, reversed.
Cite as 311 Or App 473 (2021) 475
DeVORE, P. J.
This is a consolidated appeal from two criminal
judgments. In Case No. 19CR32373, defendant was found
guilty after a jury trial of four counts of first-degree forg-
ery, ORS 165.013 (Counts 1 to 4), and one count of third-
degree theft, ORS 164.043 (Count 5). The trial court merged
Count 3 with Count 2. On Count 2, the court sentenced
defendant as a repeat property offender under ORS 137.717,
relying on Counts 1 and 4 as predicate offenses. In Case No.
19CR38036, defendant waived jury and the court found him
guilty of a single count—third-degree theft, ORS 164.043.
He appeals, raising seven assignments of error. We reject
defendant’s third and fourth assignments of error without
discussion. For reasons that will become apparent, we con-
sider the remaining assignments out of sequence.
In his second assignment, defendant contends that
the trial court erred in denying his motion for judgment
of acquittal (MJOA) for third-degree theft in Case No.
19CR38036. The state concedes that the evidence is insuffi-
cient to permit a reasonable inference that the forged $100
bills defendant was alleged to have stolen had “some non-
zero market value,” and, therefore, the trial court erred in
denying defendant’s MJOA. We agree and accept the state’s
concession. See State v. Waterhouse, 359 Or 351, 361-62, 373
P3d 131 (2016) (to survive an MJOA, there must be evidence
from which the factfinder “could reasonably infer that the
[stolen item] possessed ‘some value,’ the minimum needed
to define it as ‘property’ ” for purposes of third-degree theft).
Accordingly, we reverse defendant’s conviction in Case No.
19CR38036.
In his fifth and sixth assignments of error, defen-
dant contends that the trial court erred by instructing the
jury that it could return a nonunanimous verdict and by
accepting the jury’s nonunanimous verdicts on Counts 4
and 5 in Case No. 19CR32373. The jury’s verdict was unan-
imous on Counts 1 to 3. On Count 4, a Class C felony, the
jury returned a verdict of 10-2, and on Count 5, a Class C
misdemeanor, a verdict of 11-1. In Ramos v. Louisiana, 590
US ___, 140 S Ct 1390, 1394-97, 206 L Ed 2d 583 (2020),
the United States Supreme Court held that the Sixth
476 State v. McClour
Amendment requires a unanimous verdict for a conviction
in the case of a “serious offense.” Thus, the parties readily
agree—as do we—that defendant’s conviction on Count 4
must be reversed and remanded. Further, we recently con-
cluded, in State v. Heine, 310 Or App 14, 21, 484 P3d 391
(2021), that “due process requires jury unanimity to convict
a criminal defendant when the defendant is tried by a jury,
regardless of the nature of the offense for which the defen-
dant is on trial.” That is, although the federal constitution
allows the state to choose not to provide a defendant with a
jury when trying a petty offense, where the state opts to do
so, due process requires a unanimous verdict for conviction.
Id. at 18. Accordingly, we also reverse and remand defen-
dant’s conviction on Count 5. Defendant’s contention that
the counts for which the jury returned a unanimous verdict
must be reversed is foreclosed by State v. Flores Ramos, 367
Or 292, 319-20, 478 P3d 515 (2020) (holding that nonunan-
imous jury instruction is not structural error that requires
reversal in every case and, where the verdict was unani-
mous, the instructional error was harmless beyond a rea-
sonable doubt).
Our disposition on those assignments of error
essentially resolves defendant’s first assignment of error as
well. There, he asserts that the trial court erred in over-
ruling his objection to the prosecutor’s statement to the
jury during closing argument that “if you come in and you
vote, and 10 of you agree that the defendant is guilty, then
you’re done. That’s all you have to do.” We have already con-
cluded that defendant’s convictions on Counts 4 and 5 must
be reversed and remanded. And, with regard to the counts
for which the jury was unanimous, any error—if there was
one—was harmless for the reasons the state suggests, in
particular, that the trial court expressly instructed the jury
to “deliberate and find [its] verdict” after selecting a pre-
siding juror and gave several other instructions concerning
the jury’s deliberation. As in Flores Ramos, the “jurors were
given ample instruction on their duty with respect to their
individual determinations of the defendant’s guilt, and they
are presumed to have followed those instructions. ‘Judicious
application of the harmless-error rule does not require that
we indulge assumptions of irrational jury behavior when a
Cite as 311 Or App 473 (2021) 477
perfectly rational explanation for the jury’s verdict, com-
pletely consistent with the judge’s instructions, stares us in
the face.’ ” 367 Or at 323-24 (quoting Schneble v. Florida, 405
US 427, 431-32, 92 S Ct 1056, 31 L Ed 2d 340 (1972)). Thus,
we reject that assignment.
Finally, in his seventh assignment of error, defen-
dant challenges his sentence on Count 2 in Case No.
19CR32373 under the repeat property offender statute, ORS
137.717. However, because we have reversed and remanded
for a new trial one of the counts on which the trial court pred-
icated that sentence (Count 4), and defendant must be resen-
tenced in any event, we need not address that assignment.
In Case No. 19CR32373, convictions on Counts 4
and 5 reversed and remanded; remanded for resentencing;
otherwise affirmed. In Case No. 19CR38036, reversed.