(1) When an enhancement fact is tried to a jury, any question relating to the enhancement fact shall be submitted to the jury.
(2) The state has the burden of proving an enhancement fact beyond a reasonable doubt.
(3) An enhancement fact that is tried to a jury is not proven unless:
(a) The number of jurors who find that the state has met its burden of proof with regard to the enhancement fact is equal to or greater than the number of jurors that was required to find the defendant guilty of the crime; and
(b) Of the jurors who find that the state has met its burden of proof, at least the minimum number of jurors required by this subsection to prove an enhancement fact are also jurors who found the defendant guilty of the crime or alternate jurors as provided by ORS 136.773 (Enhancement fact related to defendant) (5).
(4) An enhancement fact that is tried to the court is not proven unless the court finds that the state has met its burden of proof with regard to the enhancement fact.
(5) A finding relating to an enhancement fact made by a jury during the trial or sentencing phase of a criminal proceeding may not be reexamined by the court. Notwithstanding the findings made by a jury relating to an enhancement fact, the court is not required to impose an enhanced sentence. [2005 c.463 §7; 2007 c.16 §3]
Note: See note under 136.765 (Notice to defendant).