State v. Jackson

• Decision Date: 04 August 2021
• Docket Number: A164742
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Perry Samuel JACKSON, Defendant-Appellant.
• Court: Oregon Court of Appeals

313 Or.App. 708

495 P.3d 171

STATE of Oregon, Plaintiff-Respondent,

v.Perry Samuel JACKSON, Defendant-Appellant.

A164742

Court of Appeals of Oregon.

Submitted May 30, 2019.

August 4, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Hannah K. Hoffman, Assistant Attorney General, filed the briefs for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Landau, Senior Judge.

LANDAU, S. J.

Defendant appeals a judgment of conviction for second-degree burglary, second-degree criminal mischief, first-degree trespass, and second-degree theft. He advances three assignments of error: first, that the trial court erred in denying a day-of-trial motion for a continuance; second, that the trial court erred in failing to merge the convictions for second-degree burglary and first-degree trespass; and third, by way of a supplemental assignment, that the trial court committed plain error when it instructed the jury that a vote of only 10 jurors was necessary for a conviction. We reject the first assignment without discussion. We also reject defendant's supplemental assignment as unpreserved, and we conclude that the trial court did not err in failing to merge the burglary and trespass convictions. We therefore affirm.

The relevant facts are not in dispute. Defendant broke into a then-unoccupied house located on Date Street, changed the locks, and posted a notice that he was asserting ownership by adverse possession. The owner was able to obtain entry and change the locks again, but defendant once again broke into the house. The state charged defendant with numerous offenses relating to those incidents. Pertinent to this appeal, the indictment alleged that defendant, in committing second-degree burglary, "did unlawfully and knowingly enter and remain in a building," namely, the Date Street house. As to the charge of first-degree trespass, the indictment alleged that defendant "did unlawfully and knowingly enter or remain in a dwelling," the Date Street house.

Defendant waived his right to counsel and represented himself, and the case proceeded to trial. The trial court instructed the jury that 10 or more jurors must agree on the verdict. Defendant did not request a unanimous verdict instruction. The jury returned verdicts of guilty on the four counts. Neither party requested the trial court to poll the jury.

At sentencing, the question arose whether the convictions for second-degree burglary and first-degree trespass should merge. The trial court noted that the burglary charge referred to defendant having entered a "building," while the trespass charge referred to defendant having entered a "dwelling." The state appears to have suggested that the distinction was of no matter for sentencing purposes and that the two convictions should merge. The trial court nevertheless entered separate convictions. On appeal, defendant argues that the trial court erred in delivering a nonunanimous jury instruction and in failing to merge the burglary and trespass convictions.

We begin with defendant's jury instruction claim of error. Defendant concedes that he did not ask for a unanimous jury instruction. He further concedes that he did not ask the trial court to poll the jury. He nevertheless argues that the trial court committed plain error in instructing the jury and that the error was "structural" in nature. According to defendant, because of that structural error, it does not matter that he failed to ask the court to poll the jury. In any event, he argues, the error was not harmless. The state responds that, although the jury instruction was erroneous, it should not be reviewed as plain error.

ORAP 5.45(1) provides that a claim of error may not be considered on appeal "unless the claim of error was preserved in the lower court * * * provided that the appellate court may, in its discretion, consider a plain error." Determining whether to review asserted plain error involves two questions: First, is the error "plain"; in other words, is the error one of law, not reasonably in dispute, and apparent from the record? State v. Vanornum , 354 Or. 614, 629, 317 P.3d 889 (2013). Second, if the error is plain, should the appellate court exercise its discretion to review the error? State v. Gornick , 340 Or. 160, 166, 130 P.3d 780 (2006).

In this case, although it was plain error for the trial court to deliver a nonunanimous jury instruction, we decline to exercise our discretion to review the error, given the absence of a jury poll.

In Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires a jury to be unanimous to convict a defendant of a serious criminal offense. The Oregon Supreme Court then held, in State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020), that Ramos requires reversal of Oregon convictions based on nonunanimous jury verdicts. The court further held in Ulery that reversal of nonunanimous convictions is appropriate even if the error was not preserved in the trial court. Id . at 503, 464 P.3d 1123 ; see also State v. Kincheloe , 367 Or. 335, 339, 478 P.3d 507 (2020), cert. den. , ––– U.S. ––––, ––– S. Ct. ––––, ––– L. Ed. 2d ––––, No. 20-8126, 2021 WL 2519403 (June 21, 2021) (receipt of a nonunanimous guilty verdict is plain error).

The question then arose whether Ramos requires convictions to be reversed when the trial court erroneously instructs the jury that it may convict on less than a unanimous verdict, but the jury nonetheless votes unanimously. The Oregon Supreme Court took up that question in State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020). In that case, the state argued that the return of a unanimous verdict renders any instructional error harmless. The defendant argued that the instructional error was "structural" in nature—that is, the error is a "structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself," Arizona v. Fulminante , 499 U.S. 279, 310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991). Because the error was structural, the defendant argued, no harmless error analysis applies. The Supreme Court rejected the defendant's argument that an erroneous nonunanimous jury instruction is structural and requires no harmless error analysis. Flores Ramos , 367 Or. at 301-05, 478 P.3d 515. The court went on to conclude that, where a poll of the jury reveals a unanimous verdict, the fact that the trial court delivered an erroneous nonunanimous jury instruction amounts to harmless error. Id . at 334, 478 P.3d 515.

There remained the question whether the delivery of an erroneous nonunanimous jury instruction is reversible error when the jury was not polled. The Oregon Supreme Court addressed that question with respect to unpreserved claims of error in State v. Dilallo , 367 Or. 340, 478 P.3d 509 (2020). The defendant in that case, who had not preserved the issue at trial, argued that, because the burden rests with the state to prove harmless error, the lack of a jury poll is, in effect, the state's problem. The court, while not disagreeing with defendant's proposition as to the federal constitutional standards, declined to review the issue as plain error:

"Defendant may be right that the state would be unable to show that the instructional error that occurred in this case was harmless beyond a reasonable doubt, if we did exercise our discretion to review the error. But that does not mean that plain error review is appropriate * * *. The fact that the opposing party may need to take additional steps to develop the record in order to address an assignment of error is one of the reasons that a timely objection is required. Here, defendant did not put the state or the court on notice of his objection to the jury instruction, so the absence of a jury poll is fairly attributable to defendant, even if the state would otherwise bear the burden of establishing harmlessness on appeal."

Id . at 348 (citations omitted). The court held that, while the delivery of the instruction amounts to plain error, it is not appropriate for appellate courts to review the error when the issue was not preserved in the trial court and the jury was not polled. Id .But see State v. Scott , 309 Or. App. 615, 483 P.3d 701 (2021) (where defendant preserved an objection to nonunanimous jury instruction, the state was required to demonstrate that the constitutional violation was harmless beyond a reasonable doubt and could not do so in the absence of a jury poll).

In this case, although the trial court delivered an erroneous nonunanimous jury instruction, we do not exercise discretion to review it for the reasons set forth in Dilallo . Defendant's argument that the error was structural in nature is foreclosed by the Supreme Court's decision in Flores Ramos .

We turn then to defendant's contention that the trial court erred in failing to merge the burglary and trespass convictions. Defendant contends that the second-degree burglary conviction and the first-degree trespass conviction should merge into a single conviction for second-degree burglary. According to defendant, first-degree trespass is merely a lesser-included offense of second-degree burglary. The state concedes that the court erred in failing to merge the convictions. Upon careful consideration, however, we decline to accept the concession. See State v. Gillespie , 299 Or. App. 813, 816, 451 P.3d 637 (2019) (when state concedes error, "we are not bound to accept that concession and must decide whether to accept it" (quoting Cervantes v. Dept. of Human Services , 295 Or. App. 691, 693, 435 P.3d 831 (2019) )).

Whether offenses merge is a question of law, State v. Loving , 290 Or. App. 805,...