Opinion
A171377
02-10-2021
STATE of Oregon, Plaintiff-Respondent, v. Kristy Lee OSBORNE, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and John Evans, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jon Zunkel-deCoursey, 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 fleeing or attempting to elude a police officer, in violation of ORS 811.540(1)(b)(A) (Count 1) and one count of reckless driving, ORS 811.140 (Count 2). The jury was instructed that it need not be unanimous, but notwithstanding such instruction the jury's verdict was determined to be unanimous for both counts upon polling by the trial court. On appeal, defendant assigns error to the denial of her motion to substitute counsel and to the nonunanimous jury instruction. We reject without discussion the argument concerning the motion for substitute counsel.
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 verdicts must be reversed as structural 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 explained, even though the nonunanimous jury instruction was erroneous in light of Ramos , because the verdicts for each count of conviction were unanimous, such error was harmless beyond a reasonable doubt. State v. Ciraulo , 367 Or. 350, 354, 478 P.3d 502 (2020).
Affirmed.