State v. Phillips, 493 P.3d 548

Phillips and Largaespada were in a romantic relationship and share a young child; they were not living together at the time of the incident.
After a quarrel, Largaespada drove alongside Phillips and demanded return of their daughter; at the parking lot Phillips grabbed the child, Largaespada retrieved the child and Phillips spat in her face.
Largaespada grabbed Phillips’ shirt and Phillips struck her with a closed fist; police were called and Phillips was charged with fourth-degree assault (domestic violence) and misdemeanor harassment.
At trial the court instructed on self‑defense and, at the state’s request, gave UCrJI 1110 (the “initial aggressor” instruction); the jury was told nonunanimous verdicts were allowed and returned nonunanimous guilty verdicts on both counts.
On appeal Phillips challenged (1) the nonunanimous‑verdict instruction and acceptance of nonunanimous verdicts, (2) the initial‑aggressor instruction (arguing spitting is not an act of physical force), and (3) exclusion of a defense witness for a discovery violation.
The court held the initial‑aggressor instruction was supported by evidence (spitting can be offensive physical contact) but, relying on Ramos and Oregon authority, reversed both convictions because due process requires jury unanimity for criminal convictions and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court may instruct and accept nonunanimous jury verdicts (Counts 1 & 2)	State conceded Count 1 should be reversed under Ramos but argued misdemeanor Count 2 did not implicate the Sixth Amendment right to a jury trial	Ramos requires jury unanimity for criminal convictions; nonunanimous verdicts are unconstitutional	Reversed both convictions; due process requires jury unanimity for jury trials (court relied on Ramos and State v. Heine)
Whether giving the "initial aggressor" instruction was supported by evidence (does spitting constitute initial aggression)	Spitting is offensive physical contact and can be the initial act of aggression	Spitting is akin to mere words and not the use or threat of physical force, so it cannot make defendant the initial aggressor	Affirmed instruction; spitting can be a physical act comparable to striking/slapping and supported giving UCrJI 1110
Whether excluding a defense witness for a discovery violation was erroneous	State defended exclusion as appropriate remedy	Phillips argued exclusion was error	Not addressed on appeal as disposition on unanimity made it unnecessary

Ramos v. Louisiana, 590 U.S. _ (due process requires jury unanimity to convict a criminal defendant)
State v. Heine, 310 Or App 14 (Oregon appellate holding that due process requires jury unanimity regardless of offense)
State v. Keller, 40 Or App 143 (spitting can be offensive physical contact comparable to striking)
Silfast v. Matheny, 171 Or 1 (slapping may render one the initial aggressor for self‑defense law)
Penn v. Henderson, 174 Or 1 (mere words unaccompanied by overt hostile act do not make one the initial aggressor)
State v. Wolf, 288 Or App 613 (standard for when there is sufficient evidence to support giving an instruction)