State v. Doyle

314 Or.App. 223

496 P.3d 709

STATE of Oregon, Plaintiff-Respondent,

v.Eric Paul DOYLE, Defendant-Appellant.

A160738

Court of Appeals of Oregon.

Submitted on remand July 12, 2021.

September 1, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the briefs for respondent.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

PER CURIAM

This case is before us a second time. In State v. Doyle , 298 Or. App. 712, 450 P.3d 29 (2019) ( Doyle I ), defendant appealed his conviction for first-degree sexual abuse, challenging the trial court's rulings that precluded admission of certain evidence and denied defendant's requested jury instruction on unanimous verdicts. We rejected all of defendant's arguments, writing only to address defendant's evidentiary claims. The Supreme Court granted defendant's petition for review, vacated our opinion, and remanded for us to reconsider our decision in light of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). State v. Doyle , 368 Or. 206, 487 P.3d 847 (2021) ( Doyle II ). Considering the change in the law from Ramos , we now reverse defendant's conviction on that basis. Nonetheless, because the same evidentiary issues are likely to arise on remand, we adhere to the balance of Doyle I and reject defendant's remaining assignments of error.

A full recitation of the facts was previously provided in Doyle I . We restate the following facts only as necessary to understand defendant's jury instruction claim and our decision to address and adhere to our prior decision related to defendant's evidentiary claims.

Defendant was charged with sexually abusing F, who was the eight-year old daughter of defendant's friends (F's mother and stepfather). Doyle I explained:

"Before trial, the state sought to preclude defendant from confronting F with evidence that she had previously made several false accusations of sexual abuse, and the court held a hearing outside the presence of the jury to evaluate that evidence. In particular, defendant sought to cross-examine F about prior accusations of sexual abuse against her brothers, father, and stepfather. Defendant argued that [the evidence was admissible,] in accordance with the criteria for admission under [ State v. ] LeClair , [83 Or. App. 121, 730 P.2d 609 (1986), rev. den. , 303 Or. 74 [734 P.2d 354] (1987) ][.]"

298 Or. App. at 713-14, 450 P.3d 29 (footnote omitted). After a hearing, "the court rejected defendant's LeClair arguments, ruling that defendant would not be permitted to cross-examine F on past sexual abuse accusations." Id. at 718, 450 P.3d 29.

Before trial, defendant filed a motion requesting that the jury be instructed that it must reach a unanimous verdict to convict. The trial court rejected that motion, instructing the jury that it could convict if "10 or more jurors" agreed on the verdict. After the jury was so instructed, defendant again objected. The jury convicted defendant of first-degree sexual abuse.¹ Both parties declined the trial court's request to poll the jury.

Defendant appealed his conviction, arguing that the trial court erred in precluding him from confronting F at trial with evidence that she had falsely accused others of sexual abuse. Defendant also argued that the Sixth and Fourteenth Amendments to the United States Constitution requires unanimous jury verdicts and failure to give such an instruction constitutes structural error. As noted, we rejected both arguments and affirmed. Doyle I , 298 Or. App. at 713 n. 1, 720-24, 450 P.3d 29.

Defendant sought review of all of our rulings. The Supreme Court allowed review and vacated our decision and remanded for us to reconsider our decision in light of the change in the law from Ramos .

Beginning with defendant's jury instruction claim, we now conclude that the trial court erred in instructing the jury that it could convict based on a nonunanimous verdict. See Ramos , 590 U.S. at ––––, 140 S. Ct. at 1390 (holding that the Sixth Amendment to the United States Constitution requires a jury to be unanimous to convict of a serious offense). However, we reject defendant's argument that the error constitutes structural error....