State v. Kincheloe, 478 P.3d 507

Defendant Charles Kincheloe was tried in 2018 on counts including first-degree rape, first-degree sodomy, and fourth-degree assault before the U.S. Supreme Court decided Ramos.
The trial court instructed the 12-person jury that a verdict could be returned if 10 or more jurors agreed (a nonunanimous verdict). Defense did not object after being asked by the court.
The jury convicted on all counts; a post-verdict poll showed unanimous verdicts on sodomy and assault but an 11–1 split on the rape count.
The Court of Appeals affirmed. After Ramos, this court granted review to address the impact of Ramos on the convictions.
The state conceded the nonunanimous rape conviction must be reversed; it argued the nonunanimous-instruction error was harmless as to the unanimously decided counts.
The Oregon Supreme Court applied its recent Flores Ramos and Ulery decisions: it affirmed the two convictions based on unanimous verdicts (harmless error) and reversed the conviction based on the nonunanimous verdict (plain error), and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether instructing the jury that a nonunanimous verdict was permissible is structural error requiring automatic reversal of convictions	Ramos requires unanimity; instruction violated Sixth Amendment; all convictions must be reversed	Instruction is not structural; harmlessness analysis applies to some convictions	Not structural (Flores Ramos); instruction is subject to harmless-error review
Whether the nonunanimous-instruction error is harmless as to convictions with unanimous verdicts	N/A (state argues harmless)	Instruction tainted deliberations; poll may be unreliable; unanimity of some verdicts insufficient to show harmlessness	Harmless beyond a reasonable doubt as to counts with unanimous jury polls; those convictions affirmed (applying Flores Ramos)
Whether receipt of a nonunanimous guilty verdict for a serious offense is plain error subject to reversal even if not preserved	N/A	If not preserved, appellate plain-error review may still apply	Receipt of a nonunanimous guilty verdict is plain error and not harmless; nonunanimous conviction reversed (applying Ulery)
Whether a jury poll showing unanimity reliably establishes harmlessness of the nonunanimous-instruction error	State: a unanimous poll can show harmlessness	Defendant: poll evidence may be unreliable; cannot establish harmless beyond a reasonable doubt	A unanimous jury poll can establish harmlessness for those counts (Flores Ramos); here it did for two counts

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (Sixth Amendment requires jury unanimity for serious offenses)
Chapman v. California, 386 U.S. 18 (1967) (constitutional error is reversible unless harmless beyond a reasonable doubt)
State v. Ulery, 366 Or. 500 (2020) (receipt of a nonunanimous guilty verdict is plain error after Ramos and cannot be harmless)
State v. Flores Ramos, 367 Or. 292 (2020) (nonunanimous-verdict instruction is not structural; unanimous jury poll can establish harmlessness)