No. 981 October 14, 2026 705
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
ADAM STEVEN LYON,
Petitioner-Appellant,
v.
Delores MATTEUCCI,
Superintendent,
Oregon State Hospital,
Defendant-Respondent.
Marion County Circuit Court
20CV20200; A184748
Jenefer Stenzel Grant, Judge.
Submitted January 21, 2026.
Jedediah Peterson and Equal Justice Law filed the brief
for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Interim Deputy Attorney General, and Rebecca M. Auten,
Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Joyce, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
706 Lyon v. Matteucci
HELLMAN, J.
Petitioner appeals a judgment that denied postconviction relief. On appeal, in three assignments of error,
he argues that the post-conviction court erred when it denied
relief on his claims that challenged the nonunanimous verdict of guilty except for insanity (GEI) in his case. We conclude that the post-conviction court did not err in denying
relief on the basis that petitioner did not establish, as a factual matter, that the jury was nonunanimous as to petitioner’s guilt for aggravated harassment, especially in light of
the unique facts of this case where petitioner conceded guilt
and advocated not for an acquittal, but for the precise GEI
outcome that he received. Accordingly, we affirm.
The relevant facts are undisputed. While petitioner
was incarcerated in the medical observation unit of the
Washington County Jail, he threw a cup of his urine and old
food at a sheriff’s deputy who was assisting petitioner with
his medication. The urine struck the deputy in his chest
and face. As a result of that conduct, the state charged petitioner with a felony count of aggravated harassment, ORS
166.070. As applicable here, under ORS 166.070(1)(b), “[a]
person commits the crime of aggravated harassment if the
person, knowing that the other person is a public safety officer knowingly propels * * * urine * * * at the public safety
officer while the public safety officer is acting in the course of official duty.” A police officer is a “public safety officer.” ORS 181A.355(16).
Prior to trial, petitioner gave notice that he would
pursue the affirmative defense of GEI, ORS 161.295(1).1 To
prove that affirmative defense, a defendant has the burden
to “show that they suffered from (1) a mental disease or
defect (2) that resulted in a (3) lack of substantial capacity to (a) appreciate the criminality of the conduct or (b) to conform the conduct to the requirements of law.” State v. Meiser, 343
Or App 75, 76, 577 P3d 1167, rev den, 372 Or 438 (2025). Prior to trial, two experts evaluated petitioner (one for the state
and one for petitioner) and both concluded that he was GEI
at the time of the charged conduct. Notwithstanding those
1
Petitioner does not raise any challenge to trial counsel’s strategic decision to pursue the GEI defense or to trial counsel’s execution of the strategy at trial. Cite as 353 Or App 705 (2026) 707
overlapping conclusions, the state chose to proceed with the
criminal trial and sought to prove that petitioner acted with
the required intent to sustain a criminal conviction.
Consistent with his asserted defense, trial counsel
focused on establishing that petitioner met the GEI standards. Prior to trial, counsel successfully obtained the exclusion of evidence that called into question petitioner’s ability to form criminal intent. In his opening statement, trial
counsel conceded that petitioner committed the charged conduct: “You’re going to hear that [petitioner] threw the cup of liquid at Deputy McCune. It’s not a contested fact.” The jury
heard testimony that petitioner admitted to planning the
act ahead of time, knowing what was in the cup, and intentionally throwing the cup at someone he knew was a public
safety officer working at the jail. Petitioner’s defense case
focused on the expert witnesses who testified that petitioner
met the elements of the GEI defense when he committed the
crime.
At the conclusion of evidence, trial counsel moved
for a directed verdict of GEI, arguing that the record conclusively demonstrated the petitioner met the GEI standards.
The trial court denied the motion. During the jury instruction discussion, counsel reminded the court that he had
conceded petitioner’s guilt and was not seeking instructions
on diminished capacity. In closing arguments, trial counsel
told the jury that petitioner “knew it was a deputy” when he
threw the cup and specifically argued to the jury that he was
“not asking you to find [petitioner] not guilty, or innocent
and send him walking out the door. I’m asking you to find
him guilty except for insanity.” Counsel raised no objection
when the prosecutor told the jury that petitioner had conceded that he was guilty of the offense. The jury returned
a verdict of GEI. When polled, only 11 jurors indicated they
concurred with that verdict. The record does not indicate
how the 12th juror voted.
Thereafter, petitioner pursued post-conviction relief,
arguing that his nonunanimous GEI verdict was unconstitutional under the Sixth Amendment as established in Ramos
v. Louisiana, 590 US 83, 140 S Ct 1390, 206 L Ed 2d 583
(2020), and as applied in collateral proceedings by Watkins
708 Lyon v. Matteucci
v. Ackley, 370 Or 604, 523 P3d 86 (2022). The post-conviction
court rejected petitioner’s claims. The post-conviction court
first determined that petitioner did not prove that he received a nonunanimous guilty verdict because “[t]he record shows
the jury was split only as to petitioner’s affirmative defense.” In so stating, the post-conviction court assumed that, if the
dissenting juror voted guilty and dissented only on the GEI
affirmative defense, then petitioner was still found guilty
by a unanimous jury. The post-conviction court also determined that petitioner failed to prove that he was prejudiced
by the nonunanimous verdict because, if a retrial occurred,
it would “expose[e] Petitioner to retrial before another jury, with unknown consequences” and that obtaining an acquittal was “very unlikely under the facts.” The post-conviction
court further determined that petitioner’s “logic in seeking
post-conviction relief on these facts is topsy-turvey” because “[p]etitioner presented an affirmative defense, advocated
for a GEI verdict, and got exactly what he asked for.”
Accordingly, the post-conviction court entered a judgment
denying relief. This appeal followed.
“We review the post-conviction court’s ruling for
legal error. In doing so, we are bound by the post-conviction
court’s findings of fact if they are supported by evidence in
the record.” Cunningham v. Premo, 278 Or App 106, 109,
373 P3d 1167, rev den, 360 Or 237, 360 Or 422, 360 Or 751
(2016), cert den, 580 US 1202 (2017) (quoting ORS 138.220
and Montez v. Czerniak, 355 Or 1, 8, 322 P3d 487, adh’d to
as modified on recons, 355 Or 598, 330 P3d 595 (2014)). “If
the post-conviction court failed to make findings of fact on
all the issues—and there is evidence from which such facts
could be decided more than one way—we will presume that
the facts were decided consistent with the post-conviction
court’s conclusions of law.” Id.
In Oregon, a “guilty except for insanity finding is
not an acquittal—it is a guilty verdict.” State v. Reese, 156
Or App 406, 410, 967 P2d 514 (1998). And under Richards
v. Brown, 345 Or App 321, 328, 582 P3d 664 (2025), rev den,
375 Or 261 (2026), a general verdict, as was returned
here, necessarily incorporates a jury’s decision on defenses
and affirmative defenses. Thus, petitioner asserts, his
Cite as 353 Or App 705 (2026) 709
non-unanimous GEI verdict automatically entitles him to
post-conviction relief under Ramos and Watkins.
We disagree. Most affirmative defenses are considered by the jury in the context of making the choice between
a “guilty” and “not guilty” verdict. That is, the affirmative
defense plays a role in the jury’s determination of the defendant’s guilt in the first instance. In those cases, an 11-1
verdict can be sufficient, on its own, to establish the Sixth
Amendment violation because the verdict itself informs us
of the jury’s conclusions regarding the defendant’s guilt. To
put it another way, in most cases an 11-1 verdict informs
us that only 11 jurors determined that the state had met
its burden to prove the essential elements of the charged
offense beyond a reasonable doubt, even taking into consideration any affirmative defenses that were raised.2
But that is not the case when the affirmative
defense is GEI. Prior to returning a verdict of GEI, the jury
must first determine that the state has proved beyond a reasonable doubt that the defendant is guilty of the charged
offenses. State v. Counts, 311 Or 616, 622, 816 P2d 1157
(1991) (characterizing the defense as a “serial inquiry” in
which the first question is whether the state carried its burden of proof beyond a reasonable doubt, and only if answered
in the affirmative does the jury consider whether defendant
established the affirmative defense); State v. Olmstead, 310
Or 455, 463, 800 P2d 277 (1990) (ORS 161.295 “presupposes
that the state has proved all elements of the crime”). As the
Supreme Court characterized it, the question of guilt is one
of “criminal culpability”; the question of GEI is one of “criminal responsibility” and “the defense of mental disease or
defect requires a finding that the defendant is criminally
culpable before a question arises as to whether society will
hold the defendant criminally responsible.” Counts, 311 Or at
622 (emphases in original). ORS 161.295 thus reflects a legislative choice that defendants who are criminally culpable
2
To be sure, there could be arguments as to whether the jury must be unanimous in its rejection of an affirmative defense. For example, in Richards, the petitioner argued that the jury had to unanimously reject the affirmative defense of an extreme emotional disturbance (EED) in part because a finding of EED results in a conviction for a lesser offense. 345 Or App at 325. But petitioner did not make any such arguments in this case.
710 Lyon v. Matteucci
(guilty) but less criminally responsible due to a mental disease or defect are entitled to a different set of dispositional alternatives, such as placement in the custody of the
Psychiatric Security Review Board or a designated agency
to provide treatment services. See ORS 161.327.
The historical right to jury unanimity guaranteed
under the Sixth Amendment plainly applies to the jury’s
determination that the state met its burden to prove the
essential elements of the crime beyond a reasonable doubt;
i.e., whether a defendant is “guilty” and therefore can be
“convicted.” See Ramos, 590 US at 90 (“A jury must reach a
unanimous verdict in order to convict.”). But petitioner does
not cite any cases, nor are we aware of any, in which the
Sixth Amendment requires a jury to unanimously determine that a defendant should be held less criminally responsible for his crimes due to a mental disease or defect. Indeed, we relied on United States Supreme Court case law to make
clear that “[a] defendant has right to a jury trial only with
respect to the elements of the crime.” State v. Wayman, 339
Or App 9, 19, 568 P3d 232, rev allowed, 374 Or 372 (2025)
(citing Oregon v. Ice, 555 US 160, 163, 129 S Ct 711, 172 L
Ed 2d 517 (2009), and Apprendi v. New Jersey, 530 US 466,
490 n 16, 120 S Ct 2348, 147 L Ed 2d 435 (2000)). Nor are we
directed to any cases that hold that the Sixth Amendment
requires a jury to unanimously conclude that a defendant
established an affirmative defense on which he bore the burden of proof.3
Here, for purposes of the Sixth Amendment
analysis, the 11-1 vote for GEI demonstrates only that
eleven jurors concluded that petitioner was guilty of aggravated harassment and that he met his burden to establish
the affirmative defense of GEI. However, the verdict alone
does not demonstrate a Sixth Amendment violation because
it does not conclusively establish whether the twelfth juror
3
We are aware that in State v. Reese, 156 Or App 406, 410, 967 P2d 514 (1998), we held that under Article I, section 11, of the Oregon Constitution and former ORS 136.450 (1995), “when insanity is raised as an affirmative defense in a murder trial, former ORS 136.450 requires that a jury verdict of guilty except for insanity be by a unanimous vote.” But we do not view that holding as controlling authority on the question before us. Defendant was not charged under former ORS 136.450. Moreover, this case presents questions of fact and federal constitutional law that were not at issue in Reese.
Cite as 353 Or App 705 (2026) 711
concluded that petitioner was guilty but did not meet his
affirmative defense, or whether the twelfth juror voted to
acquit petitioner.
The post-conviction court found as fact that the most
likely explanation for the 11-1 vote was that the twelfth juror concluded that petitioner was guilty of aggravated harassment but determined that petitioner did not establish the
affirmative defense of GEI. Thus, the post-conviction court
found that petitioner did not establish that the jury was nonunanimous as to petitioner’s guilt of the charged offense; the “criminal culpability” portion of the GEI verdict.4 Although
the jury did not (indeed could not) return a special verdict
indicating their separate conclusion as to petitioner’s guilt, the likely vote of the twelfth juror was still a question of
fact that the post-conviction court was permitted to decide.
Petitioner does not claim otherwise or challenge the postconviction court’s factfinding in any way on appeal.
And the record supports the post-conviction’s factual finding regarding the twelfth juror’s vote. The evidence
of petitioner’s guilt was substantial and unchallenged by the
defense. Indeed, the trial court granted counsel’s motion to
exclude evidence that called into question petitioner’s ability to form the required intent to commit the crime. Instead
of challenging the state’s case, counsel repeatedly conceded
petitioner’s guilt and urged the jury not to acquit, but to
return a GEI verdict. Petitioner points to no evidence on
this record that would permit a rational conclusion that the
twelfth juror voted to acquit him of aggravated harassment.
We additionally agree with the post-conviction court
that there is a mismatch between petitioner’s success with
his trial strategy and his later pursuit of this post-conviction litigation. Whatever possible legal arguments exist against
4
The legislature’s choice to define the affirmative defense as “guilty except for insanity” (a guilty verdict) differentiates the analysis in this case from those jurisdictions that characterize the affirmative defense as one of “not guilty by reason of insanity” (an acquittal). See, e.g., United States v. Southwell, 432 F3d 1050 (9th Cir 2005) (stating that if a juror “finds that the government has proven each element of the offense beyond a reasonable doubt, but also finds that the defendant has proven insanity by clear and convincing evidence, he must find the defendant not guilty by reason of insanity.”). In those jurisdictions, a split verdict on the affirmative defense is, by definition, a non-unanimous verdict on the question of guilt. Not so in Oregon.
712 Lyon v. Matteucci
the 11-1 GEI verdict, the fact remains that petitioner’s
entire trial strategy was to seek a GEI verdict, and he does
not now challenge the choice of that strategy.5 Moreover, not
only did petitioner specifically ask the jury to find him GEI, he also admitted guilt and explicitly made it clear that he
was not asking for an acquittal. Having effectively taken
an acquittal off the table, the nonunanimous GEI verdict
allowed him to avoid the only other option before the jury:
criminal liability and a resulting sentence of incarceration.
As the record demonstrated, petitioner adamantly did not
want that outcome. Thus, we can conceive of no “proper and
just” remedy under ORS 138.520 that a court could order on
petitioner’s claims that would not result in petitioner being
placed in a worse position than he currently stands.
Because petitioner did not prove that the jury was
non-unanimous as to his guilt (criminal culpability) for
aggravated harassment, the post-conviction court did not
err in denying relief.
Affirmed.
5
Although judicial estoppel was not raised below or in this appeal, we observe that that equitable doctrine prevents a party from “assuming a position in a judicial proceeding that is inconsistent with the position that the same party has successfully asserted in a different judicial proceeding.” Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 609, 892 P2d 683 (1995).