State v. Sell

A fair trial is one in which “the verdict is based on the evidence and not on factors external to the proof at trial.” State v. Osorno, 264 Or App 742, 748 (2014). When a defendant claims that the jury could not follow instructions, the defendant must show an “overwhelming probability” that the jury failed to do so. State v. Garrett, 292 Or App 860, 868 (2018).

Defendant was convicted of assaulting a public safety officer (count 1), resisting arrest (count 2) and interfering with a peace officer (count 3). The jurors sent a total of seven notes to the trial court expressing frustration with each other and questions about the trial during deliberations. Defendant assigned error to the trial court’s dismissal of his motion for a mistrial based on the notes and to the trial court’s failure to instruct the jury on a culpable mental state for counts 1 and 2. A fair trial is one in which “the verdict is based on the evidence and not on factors external to the proof at trial.” State v. Osorno, 264 Or App 742, 748 (2014). When a defendant claims that the jury could not follow instructions, the defendant must show an “overwhelming probability” that the jury failed to do so. State v. Garrett, 292 Or App 860, 868 (2018). The Court found that the jury was performing its role adequately by thoroughly deliberating and asking questions and did not find an “overwhelming probability” that the jury could not follow the instructions. The Court found even if there was error in not giving the correct jury instruction, the error was unlikely to have changed the verdict considering the evidentiary record. Affirmed.