State v. Ezell, 532 P.3d 496

Background

Defendant Jessie Clarence Ezell was tried and convicted of two counts of first‑degree sodomy (Counts 1, 3) and three counts of first‑degree sexual abuse (Counts 2, 4, 7); two other charges were acquitted. Counts 3 and 4 drew nonunanimous guilty votes.
During trial the State sought to admit other‑acts evidence that defendant was seen masturbating in a converted garage while his four‑year‑old daughter P was a few feet away; the witness was P’s grandmother, Cooper.
The trial court admitted Cooper’s testimony as relevant under OEC 404(4) (propensity/sexual interest in children), conducted an OEC 403 probative‑vs‑prejudice balancing, and gave a limiting instruction that jurors could consider the testimony only to determine whether defendant had a sexual interest in children.
Mid‑trial an OEC 104 hearing resolved admissibility; the court’s balancing relied on the record available at that time and recognized the State’s need to prove sexual purpose as an element of the charged offenses.
On appeal the State conceded that the trial court plainly erred by instructing the jury it could return nonunanimous verdicts; the court reversed Counts 3 and 4 (nonunanimous guilty verdicts), remanded for resentencing, and affirmed the remaining convictions.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Ezell)	Held
Admissibility of other‑acts (Cooper’s masturbation observation)	Admissible under OEC 404(4) as evidence of sexual interest in children (and under alternative OEC 404(3) theories); probative value outweighs prejudice after OEC 403 balancing	Not admissible under OEC 404(3) or 404(4); alternatively should be excluded under OEC 403 because prejudicial and because defendant denied the acts	Admission affirmed: court found logical relevance to sexual purpose (404(4)), performed separate 403 balancing, and limiting instruction cured misuse; no abuse of discretion
Jury instruction permitting nonunanimous verdicts	Conceded plain error in instructing the jury that nonunanimous verdicts were allowed	Argued the instruction was plainly erroneous and tainted convictions	Conceded and accepted: plain error rendered Counts 3 and 4 reversible because those guilty verdicts were nonunanimous; those counts reversed and remanded
Structural‑error claim (that instructional error voids all convictions)	Flores Ramos forecloses treating the nonunanimous‑verdict instruction as structural error requiring reversal of unanimous convictions	Argued instructional error was structural so harmless‑error analysis shouldn’t apply; sought reversal of all convictions	Rejected: Flores Ramos controls; unanimous guilty verdicts (Counts 1, 2, 7) affirmed
Remedy / Resentencing	Limit correction to counts affected by nonunanimous verdicts	Sought broader relief (all convictions)	Court reversed Counts 3 and 4, remanded for new trial/resentencing on those counts; other convictions affirmed

Key Cases Cited

Ramos v. Louisiana, 140 S. Ct. 1390 (U.S. 2020) (holding jury unanimity required for serious crimes under Sixth Amendment)
State v. Ulery, 366 Or. 500 (Or. 2020) (discussing plain‑error correction when trial court permitted nonunanimous verdicts)
State v. Kincheloe, 367 Or. 335 (Or. 2020) (plain‑error framework and effect of nonunanimous verdicts)
State v. Flores Ramos, 367 Or. 292 (Or. 2020) (rejecting structural‑error argument and limiting remedy to affected counts)
State v. Williams, 357 Or. 1 (Or. 2015) (OEC 404(4) permits propensity evidence in criminal sexual cases under specified limits)
State v. Baughman, 361 Or. 386 (Or. 2017) (framework for assessing other‑acts evidence and distinguishing propensity vs non‑propensity uses)
State v. Travis, 320 Or. App. 460 (Or. App. 2022) (explaining stepwise analysis for other‑acts admissibility and 403 balancing)
State v. Cox, 337 Or. 477 (Or. 2004) (standard of review for OEC 403 balancing)