State v. Chitwood, 483 P.3d 1157

Defendant Nathan Chitwood was indicted on 19 sexual‑offense counts (alleged conduct against his 13‑year‑old stepdaughter) and one marijuana charge; a jury convicted him on three counts and acquitted on the rest; convictions merged into two counts for judgment.
Before trial, Chitwood moved in limine under OEC 412 to admit evidence that the victim said she was not a virgin; the court denied the motion and the defense did not renew the request during trial.
In rebuttal closing, the prosecutor referenced a prospective juror (extra‑record) and characterized “moral certainty” as meaning that if jurors felt Chitwood “should not reside with an adolescent girl,” that proved guilt beyond a reasonable doubt; defense made no contemporaneous objection.
After verdict, a juror sent a letter expressing concern that the jury had been tired and some counts may not have received full attention; defense obtained third‑party information about another juror’s relation to defendant; defense moved to question jurors under UTCR 3.120(2).
The court had given an instruction allowing conviction by 10 of 12 jurors (nonunanimous), but the actual guilty verdicts recorded for each count were unanimous; the court of appeals addressed whether the instruction was harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Admissibility of victim's sexual history under OEC 412(2)(b)(C)	State: exclusion protects victim privacy; record did not show constitutional necessity.	Chitwood: evidence constitutionally required to rebut inference that victim's sexual knowledge came only from alleged acts.	Denial affirmed — pretrial record did not show defense need outweighed state's interest.
Prosecutor's rebuttal (extra‑record juror reference; definition of “moral certainty”)	State: argument was permissible advocacy; no objection so review is plain‑error only.	Chitwood: remark relied on extra‑record evidence and misstated burden of proof; required sua sponte curative instruction or mistrial.	Court found remarks improper but declined to correct on plain‑error review (no relief).
Post‑trial juror questioning under UTCR 3.120(2)	State: juror letter and third‑party tip showed only internal deliberative problems, not fraud/misconduct.	Chitwood: juror fatigue, possible insufficient votes, and relationship of one juror warranted questioning.	Denial of juror questioning affirmed — no reasonable ground to believe fraud or extrinsic misconduct.
Nonunanimous‑verdict instruction (10/12)	State: any instructional error harmless because recorded verdicts were unanimous.	Chitwood: instruction was erroneous and prejudicial.	Claim foreclosed by later precedent; harmless because convictions were unanimous.

State v. Fowler, 225 Or. App. 187 (OEC 412 constitutional‑balance framework)
State v. Weeks, 99 Or. App. 287 (cross‑examination can show victim's sexual knowledge)
State v. Spieler, 269 Or. App. 623 (closing argument must not rely on extra‑record evidence)
State v. Montez, 324 Or. 343 (sua sponte mistrial standard — comments must be so prejudicial as to deny fair trial)
State v. Fults, 343 Or. 515 (strategic choices weigh against plain‑error relief)
State v. Inman, 275 Or. App. 920 (avoidable error factor relevant to plain‑error discretion)
State v. Wright, 323 Or. 8 (abuse‑of‑discretion review standard for juror inquiry rulings)
Koennecke v. State of Oregon, 122 Or. App. 100 (strong policy against post‑verdict juror probing)
State v. Jones, 126 Or. App. 224 (juror misconduct standard — extrinsic fraud or coercion required)
State v. Flores Ramos, 367 Or. 292 (instruction allowing nonunanimous verdict harmless when recorded verdicts unanimous)
State v. Kincheloe, 367 Or. 335 (same as Flores Ramos)
State v. Williams, 313 Or. 19 (criticisms of using “moral certainty” in reasonable‑doubt instructions)
State v. Ashkins, 357 Or. 642 (election rule to ensure jury concurrence)