State v. Garcia-Montejano

481 P.3d 1028, 309 Or. App. 397

Opinion

Submitted October 19, 2020, affirmed February 18, 2021

STATE OF OREGON, Plaintiff-Respondent,

v.

MIGUEL FERNANDO GARCIA-MONTEJANO, Defendant-Appellant.

Jackson County Circuit Court 18CR58264; A169308

481 P3d 1028

Lorenzo A. Mejia, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

PER CURIAM Affirmed.

398 State v. Garcia-Montejano

PER CURIAM Defendant was found guilty by jury verdict of delivery of methamphetamine, in violation of ORS 475.890(2) (Count 1), and unlawful possession of methamphetamine, ORS 475.894(2)(b). On appeal, raising four assignments of error, defendant claims that the trial court plainly erred by (1) instructing the jury that the state did not need to prove that defendant knew of the particular type of controlled substance that he possessed, merely that he knew that he possessed it and that it was illegal; (2) providing jury instructions allowing nonunanimous verdicts; (3) accepting the jury verdicts after providing the defective nonunanimous instruction; and (4) violating vertical proportionality principles by applying the statutory crime seriousness category of 10, while arguably more serious crimes are only classified at level 8. We reject without written discussion the first and fourth assignments.

In the second assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal. In the related third assignment, defendant contends that receiving a jury verdict based on the impermissible nonunanimous instruction is similarly structural error. After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that nonunanimous jury instruction is not a structural error that categorically 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 notwithstanding the nonunanimous instruction, the Oregon Supreme Court has determined that the erroneous instruction is harmless beyond a reasonable doubt. State v. Kincheloe, 367 Or 335, 336, 478 P3d 507 (2020). It follows that receiving a unanimous verdict despite nonunanimous jury instruction is similarly harmless. Flores Ramos, 367 Or at 319. Therefore, we reject defendant’s second and third assignments of error.

Affirmed.