State v. Looper

713 P.2d 1099 (1986)

77 Or.App. 660

STATE of Oregon, Respondent, v. George Roy LOOPER, Appellant.

M383975; CA A34455.

Court of Appeals of Oregon.

Petition for Reconsideration December 11, 1985.

Decided February 12, 1986.

*1100 Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Jonathan Fussner, Asst. Atty. Gen., Salem, for petition.

No appearance contra.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

On Respondent's Petition for Reconsideration December 11, 1985.

WARREN, Judge.

The state petitions for reconsideration of our previous decision. 76 Or. App. 231, 708 P.2d 1190 (1985).[1] We held that the trial court's failure to give the jury a written or electronically recorded copy of the jury instructions for its use during deliberation did not satisfy ORCP 59 B[2] and was reversible error. We also held that the trial court's informing the jury that it could request to have the recorded instructions played back in the courtroom during its deliberation did not satisfy the rule and that the mandatory language of ORCP 59 B required strict compliance.

In its petition, the state, for the first time, points out that ORCP 59 C(5) requires only that the jury "be kept together in some convenient place" when it retires for deliberation. We agree with the state's contention that the courtroom may be a "convenient place." Reassembling the jury in the courtroom to rehear the instructions can be part of the deliberation process. By making the recorded instructions available to the jury in the courtroom during its deliberation, the trial court did comply with ORCP 59 B. We grant the petition for reconsideration, withdraw our former opinion and affirm defendant's conviction.

Petition for reconsideration granted; former opinion withdrawn; judgment of conviction affirmed.

[1] The facts of this case are stated in our previous opinion and are not repeated here.

[2] ORCP 59 B provides, in pertinent part:

"* * * If either party requires it * * * the charge shall either be reduced to writing * * or recorded electronically during the charging of the jury. The jury shall take such written instructions or recording with it while deliberating upon the verdict * * *."