State v. Lutz
Docket: 85-4260-C-3 & 85-4270-C-3; CA A41902 & A41903
Court: Court of Appeals of Oregon; April 6, 1988; Oregon; State Appellate Court
Defendant appeals his convictions for harassment and sexual abuse, arguing he was denied a 12-member jury as guaranteed by ORS 136.210(1). The trial commenced with a 12-member jury, but one juror was excused due to illness, resulting in a trial with 11 jurors. There was no objection from either party regarding this change, nor was there any documented consent from the defendant to proceed with 11 jurors. The court noted that a verdict could still be reached with 10 or more jurors. Defendant claims the court abused its discretion in excusing the juror and failed to conduct further inquiry per ORCP 58D. However, the record does not show that he raised any objection at trial. He also contends that a jury of fewer than 12 should be treated as a non-jury trial, necessitating a written waiver under Article I, section 11 of the Oregon Constitution, and ORS 136.001(2). The court agrees that a written waiver is required for a jury trial but does not impose the same requirement regarding the size of the jury. Consent to proceed with fewer than 12 jurors may be oral or written, and the court underscores that consent cannot be implied from silence or lack of objection. Given that there is no evidence of consent in the record, the court must assess whether this lack of consent warrants reversal. Citing Guinn v. Cupp, the court outlines a remand process for cases with significant procedural omissions. The remand is intended for the trial court to determine whether the defendant consented to being tried by an 11-member jury. The court is reviewing a case concerning post-conviction relief, specifically focusing on a procedural matter regarding the trial court's decision to shackle the defendant and whether he consented to a trial by fewer than 12 jurors. The court has vacated the judgment and remanded the case for a hearing to determine the defendant's consent. If consent is found, the judgment will be reinstated; if not, the defendant will receive a new trial. Additionally, the defendant challenges the sufficiency of the indictment for harassment, arguing it does not state a crime. The court determined that the indictment did adequately allege harassment by stating that the defendant caused offensive physical contact with the victim. The defendant also contested the admission of expert witness testimony regarding child sexual abuse, but the court found the question relevant to the witness's expertise and declined to address a new argument raised on appeal. Lastly, the defendant objected to testimony regarding a hearsay statement but the court ruled that it was admissible to explain the victim's mother's actions. Any potential error in admitting this testimony was deemed harmless since similar evidence was already presented. Overall, the judgment has been vacated with the conditions for reinstatement or retrial based on the consent issue. The court noted that there was no objection from the defendant regarding the excusal of a juror, and no abuse of discretion was found in the trial court's decision.