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State v. Ramoz

Court of Appeals of Oregon

October 9, 2019

STATE OF OREGON, Plaintiff-Appellant,
v.
TALON DUANE RAMOZ, Defendant-Respondent.

          Argued and submitted September 28, 2018; resubmitted en banc March 7, 2019.

          Jackson County Circuit Court 15CR47950; Timothy Barnack, Judge.

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

          Anne Fujita Munsey, Deputy Public Defender, argued the cause for respondent. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Before Egan, Chief Judge, and Armstrong, Ortega, Hadlock, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, and Powers, Judges, and Landau, Senior Judge.

         Case Summary:

         The state appeals from an order granting defendant a new trial under ORCP 64 B. Defendant was convicted at a jury trial of two counts of rape in the first degree and two counts of unlawful sexual penetration in the first degree. After the judgment of conviction was entered, defendant moved for a new trial under ORCP 64 B(1) on the basis that the jury instructions had omitted an element of the crime. During trial, defendant had stipulated to two of the four instructions he now claims as error and had not objected to any. The trial court [299 Or.App. 788] granted defendant's motion for a new trial under ORCP 64 B(1), concluding that the instructional error was an irregularity in the proceeding of the court. The state appealed.

         Held:

         The trial court erred in granting defendant a new trial. A trial court's failure to instruct the jury properly, under the circumstances presented here, is not an irregularity in the proceedings of the court under ORCP 64 B(1).

         En Banc

         [299 Or.App. 789] SHORR, J.

         The state appeals the trial court's order granting defendant a new trial under ORCP 64. The issue in this case is whether a defendant is entitled to a new trial under ORCP 64 B when the defendant initially consents to the trial court's jury instructions, but, after the verdict, the trial court concludes that the same instructions were incorrectly given.[1]ORCP 64 B(6) provides that a party may obtain a new trial where there has been an "error in law" affecting the party's substantial rights, but that rule requires that the party object or except to the claimed error. Defendant did not object or except to the claimed error here. Indeed, as to two of the four contested jury instructions, defendant stipulated to the very instructions that he now claims were given in error, and he did not object or except to any of them after they were read in open court. Under these circumstances, defendant was not entitled to a new trial under ORCP 64 B(6).

         Defendant nevertheless contends that he is entitled to a new trial under ORCP 64 B(1) because the claimed instructional error is an "irregularity in the proceedings of the court." ORCP 64 B(1) does not require a party to object or except to the "irregularity" before seeking a new trial. As we discuss below in greater detail, that argument is unavailing. A trial court's failure to instruct the jury properly, although error, is not an "irregularity in the proceedings of the court." To conclude otherwise in these circumstances would permit a party to either stipulate or fail to object to instructional error and nevertheless obtain a new trial as an "irregularity" under ORCP 64 B(1). That would render meaningless the requirement that a party object to legal error to obtain a new trial under ORCP 64 B(6). Even assuming that there may be instances in which a trial court's conduct can be both legal error and "an irregularity in the proceedings of the court," there is nothing in this record that demonstrates [299 Or.App. 790] that the claimed error here is an irregularity in the proceedings. Instructional error, although unfortunate, can occur as part of the regular proceedings of any trial and occasionally does. That type of error is subject to correction through a direct appeal. If the instructional error is not objected or excepted to, it is subject to plain-error review. State v. Gray, 261 Or.App. 121, 129, 322 P.3d 1094 (2014). When a claimed instructional error is not objected to or excepted to, however, it is not a proper subject of a motion for new trial under ORCP 64 B(1).

         We therefore conclude that the trial court erred in granting defendant a new trial. We reverse and remand with instructions to reinstate the judgment.

         I. THE PROCEDURAL AND FACTUAL BACKGROUND TO THE STATE'S APPEAL

         A. The Historical Facts

         The state alleged that defendant raped the victim and put his fingers into her vagina when the victim was unconscious and under the influence of a pharmaceutical sedative and alcohol. Defendant was charged with two counts of rape in the first degree, ORS 163.375, and two counts of unlawful sexual penetration in the first degree, ORS 163.411. Defendant was tried before a jury. Defendant contested the charges and argued that the victim was awake, competent, and had consented to the sexual activity.

         The jury found defendant guilty on all charges. Nearly three months after the jury verdict, defendant moved for a new trial under ORCP 64 B(1), arguing that the trial court had failed to instruct the jury that defendant had to have a specific mental state-knowingly-to be guilty of the charged crimes.[2] The court granted that motion because it had mistakenly omitted the mental state element from the instructions given to the jury. The state assigns error to that ruling, contending that the court had no basis under ORCP [299 Or.App. 791] 64 B to invalidate the jury verdict and grant defendant a new trial. B. The Jury Instructions

         As noted, the issue in this case arises out of the court's instructions to the jury and the possible error therein. We spend some time discussing what we know and do not know about how that error occurred.

         Both sides proposed jury instructions on the elements of first-degree rape (Counts 1 and 2) and first-degree unlawful sexual penetration (Counts 3 and 4). Defendant proposed jury instructions that merely identified the instructions by the Uniform Criminal Jury Instruction (UCJI) number and title, namely UCJI 1603 (listing the elements of rape in the first degree)[3] and UCJI 1609 (listing the elements of unlawful sexual penetration in the first degree). The state proposed the same uniform instructions but submitted the full text of those instructions.

         Unfortunately, although the state's proposed written instructions on the first-degree rape charges matched the elements of UCJI 1603, its proposed written instructions on the first-degree unlawful sexual penetration charges did not match the elements of UCJI 1609. The state's proposed instruction for the first-degree rape charge appropriately contained the "knowingly" element in both the general description of the law of rape in the first degree and the specific instruction of what the state had to prove as to the particular acts alleged against defendant in this case. The state's proposed instructions for the unlawful sexual penetration charges included the "knowingly" mental state element when they generally defined an element of the charge (e.g., defining an element of unlawful sexual penetration in the first degree as "knowingly penetrat[ing] the vagina of another person with any object other than the penis or the mouth of the person"), but, significantly, omitted the term "knowingly" when they specifically described what the state was required to prove as to defendant's conduct toward the [299 Or.App. 792] victim (e.g., instructing that the state must prove beyond a reasonable doubt that defendant "Talon Ramoz penetrated the vagina of [the victim] with an object other than his penis or mouth"). In other words, as to the sexual penetration charges, the instructions failed to instruct specifically on the mental element that defendant had to have when he penetrated the victim.

         At the close of the state's evidence, the trial court and the parties took a break to finalize the jury instructions in a conversation that occurred off the record. Unfortunately, we do not know precisely what happened during that recess. When the parties later litigated defendant's motion for a new trial, defendant's counsel acknowledged that he had "stipulated to [the state's] jury instruction." Defendant's counsel also represented, incorrectly, that those instructions "complied with the uniform criminal jury instructions." In fact, the state's instructions, as set out above, did follow the uniform criminal jury instructions as to the first-degree rape charge, but did not follow the uniform criminal jury instructions with respect to the first-degree sexual penetration charge.

         At the close of trial, the court orally instructed the jury and provided them with written instructions. As noted, the state's proposed written instructions, which defendant stipulated to, had included a specific mens rea element as to the rape charges, but not as to the unlawful sexual penetration charges. For some reason that is not clear from the record, the court left out the specific mens rea element in the final oral and written instructions on all four counts of rape and sexual penetration. The court consistently included the element "knowingly" in the general description of the law, but consistently omitted the term "knowingly" whenever it described what the state had to prove as it applied to the particular acts for which defendant was charged. For example, the court's instruction on Count 1 stated as follows:

"Oregon law provides that a person commits the crime of rape in the first degree if the person knowingly has sexual intercourse with another person [who] is incapable of consent by reason of physical helplessness. In this case, to establish the crime of rape in the first degree (count 1), the [299 Or.App. 793] state must prove beyond a reasonable doubt the following elements:
"(1) The act occurred on or about October 24, 2015[;]
"(2) Talon Duane Ramoz had sexual intercourse with [the victim]; and
"(3) [The victim] was incapable of consent by reason of physical helplessness."

(Emphasis added.) The court read those instructions to the jury aloud in court, and neither the state nor defendant objected to them. After the court read the instructions for all four counts to the jury, the jury was sent to deliberate, and the court asked the attorneys if they had any exceptions to the jury instructions. Both attorneys said no. There is no record of any objection to the final written instructions. The jury ultimately returned a verdict of guilty on all counts.

         C. Defendant's Motion for New Trial

         Nearly three months after the jury reached its verdict, defendant filed a motion for a new trial. In support of his motion, defendant cited ORCP 64 B(1), which provides that a trial court may grant a new trial if there has been an "[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having a fair trial." In an affidavit in support of his motion, defendant's counsel stated that the state's proposed instructions for all four counts "included the appropriate mental state, to which I stipulated," but that, "due to a typographical clerk error, the final version of the jury instructions did not include the mental state." (Emphasis in original.) Defendant now acknowledges on appeal that, for the two first-degree sexual penetration counts (Counts 3 and 4), the omission of the mental state element originated in the parties' stipulated jury instructions, and that that omission "may account for the error in the court's final instruction" for the first-degree rape charges (Counts 1 and 2).

         At a hearing on defendant's motion for new trial, defendant argued that the "clerical error" in omitting the relevant mental state from the instructions denied him a fair trial. Defendant also argued that the omission was [299 Or.App. 794] "plain error" such that his conviction would ultimately be reversed on appeal. Defendant argued that, by granting him a new trial, the trial court could expeditiously resolve the error and avoid appellate review, stating, "We're doing this a little bit differently; maybe a ...


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