Opinion
A170967
03-10-2021
STATE of Oregon, Plaintiff-Respondent, v. Robert Edward EVANS, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Francis C. Gieringer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Francis C. Gieringer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
PER CURIAM Defendant was found guilty by jury verdict of unauthorized use of a vehicle, in violation of ORS 164.135 (Count 1) and unlawful possession of methamphetamine, ORS 475.894(2)(b) (Count 3). On appeal, defendant claims that the trial court erred by (1) denying his motion for judgment of acquittal at the end of the state's case-in-chief, (2) refusing to provide the "less satisfactory evidence" jury instruction contained in UCrJI 1030, (3) providing jury instructions that allowed for nonunanimous verdicts, and (4) providing the jury with a verdict return form that allowed for nonunanimous verdicts. We reject without discussion the first and second assignments of error.
In the third assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal. In the related fourth assignment, defendant contends that providing the jury a verdict return form allowing nonunanimous verdicts was similarly a structural error. Subsequent to the United States Supreme Court's ruling in Ramos v. Louisiana , 590 U.S. ––––, 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 P.3d 515 (2020). Additionally, when, as here, the jury's verdict was unanimous for each count notwithstanding the nonunanimous instruction, the Oregon Supreme Court has determined that the erroneous instruction was "harmless beyond a reasonable doubt". State v. Ciraulo , 367 Or. 350, 354, 478 P.3d 502 (2020). Since the nonunanimous instruction was rendered harmless by the unanimous verdicts, it follows that providing the jury verdict return form allowing nonunanimous verdicts is similarly harmless. Flores Ramos , 367 Or. at 319, 478 P.3d 515. Therefore, we reject defendant's third and fourth assignments of error.
Affirmed.