State v. Guenther

484 P.3d 395, 310 Or. App. 365

Opinion

Submitted September 9, 2020, affirmed March 31, petition for review denied July 29, 2021 (368 Or 511)

STATE OF OREGON, Plaintiff-Respondent,

v.

JERED ALBERT GUENTHER,

Defendant-Appellant. Marion County Circuit Court 17CR04735; A169684

484 P3d 395

Lindsay R. Partridge, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM Affirmed.

366 State v. Guenther

PER CURIAM A jury unanimously found defendant guilty of third-degree robbery, ORS 164.395. On appeal, defendant contends that the trial court erred in denying a motion for judgment of acquittal and, additionally, in failing to properly instruct the jury in several respects. We reject without written discussion all of the assignments of error except the final two, which concern nonunanimous jury instructions.

In the fifth assignment of error, defendant argues that the trial court erred by instructing the jury that it could return a nonunanimous verdict and, in the sixth, by publishing a verdict form to the jury allowing the same. 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 explained that nonunanimous jury instruction was 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 was unanimous despite the nonunanimous instruction, such erroneous instruction was “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020). Since the nonunanimous instruction was rendered harmless by the unanimous verdict , it follows that providing the jury verdict return form allowing a nonunanimous verdict was similarly harmless. Flores Ramos, 367 Or at 319. Therefore, we reject defendant ’s fifth and sixth assignments of error.

Affirmed.