State v. Ramoz

• Citation: 367 Or. 670,483 P.3d 615
• Decision Date: 17 March 2021
• Docket Number: CC 15CR47950 (SC S067290)
• Parties: STATE of Oregon, Respondent on Review, v. Talon Duane RAMOZ, Petitioner on Review.
• Court: Supreme Court of Oregon

367 Or. 670

483 P.3d 615

STATE of Oregon, Respondent on Review,

v.Talon Duane RAMOZ, Petitioner on Review.

CC 15CR47950 (SC S067290)

Supreme Court of Oregon, En Banc.

Argued and submitted September 18, 2020.

March 17, 2021

Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Kathryn H. Clarke, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

WALTERS, C.J.,

Defendant was charged with two counts of first-degree rape and two counts of first-degree unlawful sexual penetration. When it came time to instruct the jury on those charges, defendant and the state both requested instructions that they expected would correspond to those set out in the Uniform Criminal Jury Instructions. The final jury instructions did not, however, correspond with those uniform instructions; instead, the instructions omitted, in the list of elements the state was required to prove, the mens rea elements—that defendant had acted knowingly. Defendant was found guilty on all counts but moved for a new trial under ORCP 64 B(1), alleging that the omission in the instructions was an "[i]rregularity in the proceedings of the court" that prevented him from having a fair trial. The trial court granted defendant's motion, and the state appealed. In a divided, en banc decision, the Court of Appeals reversed.

State v. Ramoz , 299 Or. App. 787, 451 P.3d 1032 (2019). For the reasons that follow, we conclude that the trial court did not err in ordering a new trial and reverse the decision of the Court of Appeals.

I. BACKGROUND

The indictment alleged two counts each of both first-degree rape under ORS 163.375(1)(d) and first-degree unlawful sexual penetration under ORS 163.411(1)(c). One count of each crime alleged that the victim was "incapable of consent by reason of mental incapacitation," and the other count of each crime alleged that the victim was "incapable of consent by reason of physical helplessness." Thus, to prove that defendant was guilty of first-degree rape under ORS 163.375(1)(d), the state had to prove that defendant knowingly¹ had "sexual intercourse" with the victim and that she was "incapable of consent by reason of *** mental incapacitation or physical helplessness." To prove that defendant was guilty of first-degree unlawful sexual penetration under ORS 163.411(1)(c), the state had to prove that defendant knowingly "penetrate[d]" the victim's vagina with his finger and "[t]he victim [was] incapable of consent by reason of *** mental incapacitation or physical helplessness."

Defendant was tried by jury. The evidence showed that the victim went to the house of Werner, a friend of both the victim and defendant. While there, the victim consumed champagne and Xanax, eventually "pass[ing] out" on Werner's bed. The victim does not drink often, but on the night in question she drank an entire bottle of champagne and consumed about five or six of Werner's Xanax pills. The victim felt a "body high" during which she "couldn't move anymore." She testified that, at some point, she heard defendant enter Werner's apartment and Werner offer defendant a glass of champagne with Xanax. She fell back asleep, later waking up to someone "slapping [her] butt," but she still could not move. She was too intoxicated to "put it together." Instead, she was simply perceiving that someone had taken her leggings off and that defendant was trying to kiss her. She tried to swing her hand through the air, and in doing, so, realized that her shirt had been taken off. She perceived defendant crawl into the bed with her and put his fingers in her vagina. She did not want him to do that, but she was unable to respond. Eventually, due to the pain she felt after defendant began having sex with her, she regained more consciousness. She began crying, slipped off of the bed, grabbed her keys and phone (but left her shoes), and ran home. Werner's neighbor, Harrop, who was a friend of defendant's, testified that, after the victim ran home crying, he asked defendant what had happened, and defendant admitted having sex with the victim and penetrating her vagina with his fingers. When asked whether defendant was intoxicated when Harrop had spoken with him, Harrop recalled that defendant was "buzzed."

Defendant called a single witness—Meneely—who was qualified as an expert in the field of forensic toxicology. Meneely testified that Xanax was a sedative, and, when mixed with alcohol, it is "severely sedating." Defendant asked whether a person would still be conscious if a person drank an entire bottle of champagne and then took five to six Xanax pills, and Meneely answered, "no." Meneely also stated that a person who had consumed that amount of alcohol and Xanax would not be able to remember what had happened because sedating medications like Xanax block the formation of memory proteins. Additionally, Meneely concluded that, if a person had consumed as much Xanax and alcohol as the victim testified that she had consumed, the person would not be able to wake up due to "slapping on the buttocks" or "painful sexual intercourse." Meneely testified that, although someone extremely sedated would likely not be able to move, it is possible that the person could perceive what is going on around them.

Before closing arguments, the parties submitted jury instructions. Both parties requested the Uniform Criminal Jury Instructions (uniform instructions) defining the crimes of first-degree rape and first-degree unlawful sexual penetration, as well as the uniform instructions defining the terms "knowingly," "mentally incapacitated," "incapacity to consent," "physically helpless," and "ignorance or mistake as a defense to sexual offenses." Defendant requested those instructions by referring to the number corresponding to the relevant uniform instruction. The state submitted typed instructions that were purportedly identical to the relevant uniform instructions. The parties and the court discussed the instructions but did so off the record.

When the court instructed the jury, it did not give instructions that corresponded with the uniform instructions defining the crimes of first-degree rape and unlawful sexual penetration in all respects. The first sentences of the court's instructions were identical to the first sentences of the uniform instructions. They defined the charged crimes and informed the jury that the law provides that a person commits the charged crimes if the person "knowingly" commits the charged acts. The next part of the court's instructions departed from the uniform instructions. The uniform instructions list all of the elements that the state must prove beyond a reasonable doubt, including that defendant acted knowingly; the court's instructions did not inform the jury that the state must prove defendant's mental state.

Specifically, instead of informing the jury that the state must prove that defendant "knowingly had sexual intercourse," the court told the jury that the state must prove that defendant "had sexual intercourse," and instead of informing the jury that the state must prove that defendant "knowingly penetrated the vagina of [the victim] with an object other than his penis or mouth," the court told the jury that the state must prove that defendant "penetrated the vagina of [the victim] with an object other than his penis or mouth."² The trial court read those instructions to the jury and provided the jury with written copies to use during deliberation. Neither party objected. The trial court also instructed the jury that, if it found that defendant was voluntarily intoxicated, it could consider that fact in determining whether defendant acted with the requisite mental state.

After the trial court instructed the jury, the parties presented their closing arguments. The jury retired and found defendant guilty of all charges. On September 30, 2016, the trial court held a sentencing hearing, and, on October 5, 2016, it entered a judgment of conviction.

Meanwhile, on September 29, defendant filed a motion for a new trial citing, as the basis for the motion, ORCP 64 B(1).³ Defendant asserted that the jury instructions setting out the elements of first-degree rape and first-degree unlawful sexual penetration "were submitted to the jury without the mental state, effectively making the charges strict liability offenses." That omission, defendant argued, prevented him from receiving a fair trial. Defendant also submitted a sworn affidavit from his trial counsel, who stated that "[t]he state submitted jury instructions that included the appropriate mental state, to which I stipulated." (Emphasis in original.) The affidavit explained that, "due to a typographical clerk error, the final version of the jury instructions did not include the mental state."

The court held a hearing on that motion on November 16, 2016. At the hearing, defendant asserted that the erroneous instructions were given as a result of a "clerical error," that was "no one's fault." Defendant recalled that the state and defendant had both submitted requests for jury instructions, that the state had submitted written instructions, and that the parties and the court had discussed the jury instructions off the record. Defendant acknowledged that, in that conversation, he had stipulated to the state's instructions, but he asserted that the state's instructions had "complied with the uniform criminal jury instructions." Defendant declared that, "[f]or whatever reason when the jury instructions *** were given back to us *** the words knowingly on all four Counts were omitted." Defendant asserted that that omission constituted ...