State v. Ovalle

303 Or.App. 356

463 P.3d 610

STATE of Oregon, Plaintiff-Respondent,

v.Joshua OVALLE, Defendant-Appellant.

A167970

Court of Appeals of Oregon.

Submitted February 25, 2020.

April 1, 2020

Jedediah Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kamins, Judge.

PER CURIAM

Defendant appeals a judgment of conviction for sexual offenses committed against his girlfriend's minor daughter, advancing two assignments of error. First, he argues that the trial court erred in admitting an audio recording between the victim and a detective because the state provided insufficient notice of intent to offer it under OEC 803(18a)(b). We reject that assignment without discussion. Second, he argues that the court erred in receiving the verdict with respect to three counts, because, among other things, the court failed to comply with ORCP 59 G(1). The state concedes that error and, as explained below, we agree.

Defendant was charged with six offenses: first-degree rape (Count 1); first-degree criminal mistreatment (Count 2); two counts of first-degree sexual abuse (Counts 3 and 4); and two counts of first-degree sodomy (Counts 5 and 6). Jury deliberations began on a Friday. Late in the afternoon, the jury indicated that it reached a verdict on Counts 2, 3, and 4, but otherwise was deadlocked on the remaining counts. The trial court elected to give the jury a folder to seal all six of the verdict forms and to have them return the following Monday to continue deliberations.

One of the jurors had a trip scheduled and was unavailable on Monday, and, before the jury was sent home on Friday, the parties agreed to have an alternate juror serve instead. Over the weekend, another juror suffered a death in the family, and the trial court released her from service. At that point, defendant objected to the court receiving the verdicts on Counts 2, 3 and 4, contending that the installation of the alternates required the jury to begin deliberating anew, in part because he had not had the opportunity to poll the previous jury. The court rejected defendant's arguments, received the verdicts on Counts 2, 3, and 4, and instructed the reconstituted jury to deliberate on Counts 1, 5, and 6. The reconstituted jury found defendant not guilty on Count 1 and guilty on Counts 5 and 6.

On...