State v. McCrary

482 P.3d 816, 309 Or. App. 782

• Court: Court of Appeals of Oregon
• Decided: March 10, 2021
• Docket: A170317
• Status: Published

Opinion

Submitted September 29, 2020, affirmed March 10, petition for review denied July 15, 2021 (368 Or 402)

STATE OF OREGON, Plaintiff-Respondent, v. DATHAN JUDE McCRARY, Defendant-Appellant. Multnomah County Circuit Court 18CR81432; A170317 482 P3d 816

Thomas M. Ryan, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge. PER CURIAM Affirmed. Cite as 309 Or App 782 (2021) 783

PER CURIAM Defendant was convicted by unanimous jury ver- dicts of second-degree burglary, ORS 164.215, and second- degree theft, ORS 164.045. He argues on appeal that the trial court erred in failing to give his requested instruction on the meaning of the term, “open to the public,” and plainly erred in instructing the jury that it could return nonunan- imous verdicts. We reject without discussion defendant’s first argument. With respect to his argument that the court plainly erred in instructing the jury that it need not reach unanimous verdicts, defendant contends that because of the erroneous jury instruction, his convictions by unanimous verdicts must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), because the error constitutes structural error. In a memorandum of additional authorities, the state notes that that argument was rejected in State v. Chorney-Phillips, 367 Or 355, 478 P3d 504 (2020), and its companion cases. We reject defen- dant’s argument for the reasons set forth in those cases. Affirmed.