Opinion
A168162
03-10-2021
STATE of Oregon, Plaintiff-Respondent, v. Charles Douglas ROY, Defendant-Appellant.
Frances J. Gray filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the briefs for respondent.
Frances J. Gray filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the briefs for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
PER CURIAM Defendant was found guilty by unanimous jury verdict on multiple felony and serious misdemeanor counts stemming from a Christmas Day 2017 armed confrontation of the ex-boyfriend of a friend's daughter. On appeal, in five total assignments of error, defendant claims that the trial court erred by (1) failing to merge the convictions for unlawful use of a firearm (Count 2) with felon in possession of a firearm (Count 7), (2) failing to sua sponte dismiss the case due to the use of a secret indictment, (3) allowing trial to proceed based on an "overbroad" indictment without a specific list of property alleged for the robbery charges, (4) prejudicing the jury at the outset of the trial by reading the felon-in-possession charge which alleged several prior felony convictions, and (5) providing jury instructions allowing nonunanimous verdicts. We reject without written discussion each assignment of error except for the assignment regarding the nonunanimous jury instruction, which we address below.
In his first additional supplemental assignment, defendant asserts that the trial court plainly erred by instructing the jury that it could return nonunanimous verdicts and that that error requires reversal as a structural error. After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses 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 was not a structural error that categorically requires reversal in every case. State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020). Additionally, when, as here, the jury's verdicts were—as defendant concedes—unanimous despite the nonunanimous instruction, such erroneous instruction was "harmless beyond a reasonable doubt." State v. Ciraulo , 367 Or. 350, 354, 478 P.3d 502 (2020) ; see also State v. Chorney-Phillips , 367 Or. 355, 359, 478 P.3d 504 (2020) (declining to exercise discretion to review as plain error an unpreserved nonunanimous instruction when the verdict was unanimous). Therefore, we reject defendant's first additional supplemental assignment of error.
Affirmed.