Opinion
A170706
02-10-2021
STATE of Oregon, Plaintiff-Respondent, v. David Lee BANKS, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
PER CURIAM
Defendant was found guilty upon jury verdict on one count of assault in the second degree, in violation of ORS 163.175. The jury was instructed that it need not be unanimous, but notwithstanding such instruction the jury's verdict was determined to be unanimous upon polling by the trial court. On appeal, defendant assigns error to the court's imposition of an upward departure sentence and to the nonunanimous jury instruction. We reject without discussion the argument concerning the upward departure sentence.
Defendant contends that in light of the United States Supreme Court ruling in Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed.2d 583 (2020), the judgment on the jury verdict must be reversed as either structural error or plain error. For the reasons the Oregon Supreme Court explained in State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020), we reject the argument that the nonunanimous jury instruction constitutes structural error. As the Oregon Supreme Court has determined that, when a jury returns a unanimous verdict despite a nonunanimous instruction, such error is harmless beyond a reasonable doubt, we must decline to exercise our discretion to review for plain error. See Flores Ramos , 367 Or. at 320-33, 478 P.3d 515.
Affirmed.