State v. Yother
484 P.3d 1098
Or. Ct. App.2021Background
- Defendant Dain Yother was convicted by a jury of being a felon in possession of a firearm (ORS 166.270).
- At trial, the court instructed the jury that it could return a nonunanimous verdict; defendant objected and requested a unanimity instruction.
- After the jury returned guilty, defense counsel declined to poll the jury.
- On appeal (after Ramos v. Louisiana), defendant argued the nonunanimous-verdict instruction violated the Sixth Amendment.
- The state conceded the instruction was erroneous under Ramos but argued reversal was unnecessary because defendant failed to show prejudice (no jury poll).
- The court concluded defendant had preserved the issue by objection, placed the burden on the state to prove harmlessness beyond a reasonable doubt, and reversed and remanded because the state could not meet that burden given the lack of a jury poll.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a jury instruction permitting a nonunanimous verdict violated the Sixth Amendment | Instructional error was harmless because defendant did not have the jury polled to show nonunanimity | Instruction violated Ramos; defendant preserved the claim by objecting at trial | Instruction was erroneous under Ramos; preserved error requires reversal unless state proves harmlessness beyond a reasonable doubt |
| Who bears the burden to show harmlessness when unanimity error is preserved | State: defendant must show prejudice from the error | Defendant: once preserved, state must prove harmlessness beyond a reasonable doubt | State bears the burden; here it could not show harmlessness beyond a reasonable doubt (reversed and remanded) |
Key Cases Cited
- State v. Balfour, 311 Or. 434 (1991) (procedural rule about raising issues in the opening brief)
- State v. Dilallo, 367 Or. 340 (2020) (refused plain-error review of unanimous-verdict instruction where defendant did not object and jury was not polled)
- State v. Scott, 309 Or. App. 615 (2021) (when unanimity-instruction error is preserved, the state must prove harmlessness beyond a reasonable doubt)