State v. Kincheloe

Under the Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Sixth Amendment requires a jury to be unanimous in order to convict a defendant of a serious offense.

Defendant was charged with several offenses including first-degree rape, first-degree sodomy, and fourth-degree assault. Defendant’s case was tried in 2018, prior to the Supreme Court’s decision in Ramos. The twelve-person jury was instructed that “10 or more jurors must agree on the verdict.” The jury unanimously convicted defendant of the sodomy and assault charges but divided eleven to one on the rape count. Defendant appealed and assigned erred to the nonunanimous jury instruction and to the receipt of the nonunanimous verdict. Defendant asserted that “Ramos requires that all his convictions, including the two convictions based on unanimous verdicts, be reversed.” In response, the State conceded that “defendant’s single conviction based on a non-unanimous verdict must be reversed,” but maintained that “the instructional error is harmless with respect to the two convictions based on unanimous verdicts.” The Court held that its decision in State v. Flores Ramos, 367 Or 292, ___ P3d ___ (2020) resolved nearly all the questions presented in this case. Specifically, Flores Ramos rejected identical arguments and held that where the jury poll reveals that the jury unanimously found the defendant guilty of the charged offense, the nonunanimous jury instruction can be held harmless beyond a reasonable doubt. Flores Ramos at 320. Thus, the Court affirmed in part but reversed Defendant’s conviction for first-degree rape and remanded to the circuit court for further proceedings.