State v. Elmore

Court of Appeals of Oregon

State v. Elmore

481 P.3d 410, 309 Or. App. 330

CourtCourt of Appeals of Oregon

DecidedFebruary 10, 2021

DocketA168907

StatusPublished

Cited by1 cases

This text of 481 P.3d 410 (State v. Elmore) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Elmore, 481 P.3d 410, 309 Or. App. 330 (Or. Ct. App. 2021).

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Opinion

Argued and submitted May 29, 2020, affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH MARK ELMORE, Defendant-Appellant. Clackamas County Circuit Court 18CR35989; A168907 481 P3d 410

Douglas V. Van Dyk, Judge. Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge.* PER CURIAM Affirmed.

______________ * Tookey, J., vice DeVore, J. Cite as 309 Or App 330 (2021) 331

PER CURIAM Defendant appeals a judgment of multiple convic- tions after unanimous jury verdicts, raising multiple assign- ments of error. He preserved none of his assignments except one challenging a jury instruction allowing nonunanimous verdicts. We reject all of defendant’s assignments and write only to address the one relating to the nonunanimous jury instruction. Defendant asserts that the jury instruction allow- ing nonunanimous verdicts constitutes a structural error. Subsequent to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Oregon Supreme Court held that nonunan- imous jury instruction is not a structural error that cate- gorically requires reversal. State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). Additionally, when, as here, the jury’s verdict is unanimous for each count notwithstand- ing the nonunanimous instruction, the Supreme Court has determined that the erroneous instruction is “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020). Therefore, we reject defendant’s challenge to the nonunanimous instruction resulting in a unanimous verdict. Affirmed.

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Argued and submitted May 29, 2020, affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH MARK ELMORE, Defendant-Appellant. Clackamas County Circuit Court 18CR35989; A168907 481 P3d 410

Douglas V. Van Dyk, Judge. Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge.* PER CURIAM Affirmed.

______________ * Tookey, J., vice DeVore, J. Cite as 309 Or App 330 (2021) 331

PER CURIAM Defendant appeals a judgment of multiple convic- tions after unanimous jury verdicts, raising multiple assign- ments of error. He preserved none of his assignments except one challenging a jury instruction allowing nonunanimous verdicts. We reject all of defendant’s assignments and write only to address the one relating to the nonunanimous jury instruction. Defendant asserts that the jury instruction allow- ing nonunanimous verdicts constitutes a structural error. Subsequent to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Oregon Supreme Court held that nonunan- imous jury instruction is not a structural error that cate- gorically requires reversal. State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). Additionally, when, as here, the jury’s verdict is unanimous for each count notwithstand- ing the nonunanimous instruction, the Supreme Court has determined that the erroneous instruction is “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020). Therefore, we reject defendant’s challenge to the nonunanimous instruction resulting in a unanimous verdict. Affirmed.

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481 P.3d 410, 309 Or. App. 330, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-elmore-orctapp-2021.

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