and submitted June 29, 2017
Washington County Circuit Court C142629CR; KIRSTEN E.
F. Werboff, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Brown, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Garrett, Presiding Judge, and Lagesen, Judge, and Edmonds,
Summary: Defendant appeals a judgment of conviction for
assaulting a public safety officer, ORS 163.208. At trial,
the jury disclosed to the trial court during deliberations
that it was divided despite being instructed not to do so; in
response, the trial court issued an additional instruction to
the jury. On appeal, defendant argues that that instruction
was coercive in violation of her constitutional right to a
fair trial. Defendant also challenges the trial court's
denial of her motion for a mistrial after the additional
instruction was issued. She argues that a mistrial was
necessary both because the additional instruction was
coercive and because the jury demonstrated an inability to
follow instructions. Held: The trial court did not
err in issuing the instruction or by denying defendant's
motion for mistrial. Under the circumstances, the instruction
was not coercive. Further, mistrial was not necessary because
the jury's single disclosure of its
Or.App. 861] divided posture did not tend to show an
"overwhelming probability" that the jury could not
Or.App. 862] GARRETT, P. J.
appeals a judgment of conviction for assaulting a public
safety officer. We write to address defendant's first and
second assignments of error, and reject her third assignment
without discussion. In her first assignment, defendant
contends that the trial court erred in issuing a supplemental
jury instruction after the jury disclosed during
deliberations that it was divided. In her second assignment,
defendant challenges the trial court's denial of her
motion for a mistrial after the supplemental instruction was
issued. We affirm.
was an inmate at Coffee Creek Correctional Facility. While
she was under "suicide watch," she engaged in an
altercation with a corrections officer that resulted in an
injury to the officer's hand. She was charged with
assaulting a public safety officer, ORS 163.208.
closing arguments, the trial court instructed the jury, in
not allow anything I've said or done during the course of
this trial to suggest that I have formed any opinion about
"*** [D]o not tell anyone, including me, how many of you
are voting not guilty or guilty until you have reached a
lawful verdict or have been discharged."
jury began deliberations around 11:30 a.m., and, at some
point, took a lunch break for an unknown amount of time.
Sometime before 4:00 p.m.,  the ...