State v. Schaefer

482 P.3d 218, 309 Or. App. 591

Opinion

Submitted November 23, 2020, affirmed March 3, 2021

STATE OF OREGON, Plaintiff-Respondent,

v.

LLOYD HOWARD SCHAEFER,

Defendant-Appellant. Marion County Circuit Court 18CR43780; A170775

482 P3d 218

Lindsay R. Partridge, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

PER CURIAM Affirmed.

592 State v. Schaefer

PER CURIAM Defendant was found guilty by jury verdict of one count of unauthorized use of a vehicle, in violation of ORS 164.135. On appeal, in two assignments of error, defendant asserts that the trial court erred by (1) denying a motion for judgment of acquittal at the close of the state’s case-in-chief and (2) providing jury instructions allowing a nonunanimous verdict. We reject without discussion the first assignment of error.

In his second assignment, defendant asserts that the jury instruction for a nonunanimous verdict constituted 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 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 is unanimous despite the nonunanimous instruction, the Oregon 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 second assignment of error.

Affirmed.