State v. Banks

481 P.3d 435, 309 Or. App. 344

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A170706
• Status: Published

Opinion

Submitted November 19, 2020, affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. DAVID LEE BANKS, Defendant-Appellant. Washington County Circuit Court 18CR79984; A170706 481 P3d 435

Theodore E. Sims, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Affirmed. Cite as 309 Or App 344 (2021) 345

PER CURIAM Defendant was found guilty upon jury verdict on one count of assault in the second degree, in violation of ORS 163.175. The jury was instructed that it need not be unanimous, but notwithstanding such instruction the jury’s verdict was determined to be unanimous upon polling by the trial court. On appeal, defendant assigns error to the court’s imposition of an upward departure sentence and to the nonunanimous jury instruction. We reject without dis- cussion the argument concerning the upward departure sentence. Defendant contends that in light of the United States Supreme Court ruling in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the judgment on the jury verdict must be reversed as either structural error or plain error. For the reasons the Oregon Supreme Court explained in State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020), we reject the argument that the nonunanimous jury instruction constitutes structural error. As the Oregon Supreme Court has determined that, when a jury returns a unanimous verdict despite a nonunanimous instruction, such error is harmless beyond a reasonable doubt, we must decline to exercise our discretion to review for plain error. See Flores Ramos, 367 Or at 320-33. Affirmed.