463 P.3d 610
Or. Ct. App.2020Background
- Defendant was charged with six sexual-offense counts against his girlfriend’s minor daughter (Counts 1–6).
- On Friday the jury reported verdicts on Counts 2, 3, and 4 but was deadlocked on Counts 1, 5, and 6; the court sealed all six verdict forms for continuation on Monday.
- Before Monday an alternate juror was seated (one juror unavailable) and another juror was later released for a family death; defendant objected that the change required new deliberations and that he was denied the right to poll the original jury on Counts 2–4.
- The trial court received the verdicts on Counts 2–4 without polling the jury; the reconstituted jury later returned verdicts on the remaining counts (not guilty on Count 1; guilty on Counts 5 and 6).
- Defendant appealed, raising (1) admission of an audio recording under OEC 803(18a)(b) and (2) alleged violations of ORCP 59 F and G(1), (3), (4), and (5) related to receiving the verdicts; the state conceded a violation of ORCP 59 G(1).
- The court affirmed in part, reversed Counts 2, 3, and 4 and remanded for resentencing, concluding the jury-polling procedure violated defendant’s rights.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of audio recording under OEC 803(18a)(b) | State argued it gave sufficient notice to admit recording. | Notice was insufficient under OEC 803(18a)(b). | Assignment rejected; court affirmed admission without discussion. |
| Receiving verdicts after juror changes; compliance with ORCP 59 G(1) (jury polling) | State conceded the trial court violated ORCP 59 G(1). | Installation of alternates and juror changes required new deliberations and defendant had an absolute right to have the jury polled on Counts 2–4. | Court agreed the polling requirement was violated; convictions on Counts 2, 3, and 4 reversed and remanded; otherwise affirmed. |
Key Cases Cited
- Brooks v. Gladden, 226 Or. 191 (1961) (recognizing defendant’s right to have the jury polled upon return of verdict)
- State v. Lewis, 18 Or. App. 206 (1974) (reversing where anonymous/altered polling procedure deprived defendant of absolute right to poll jury)