State v. Carl ( 2021 )

582
Submitted October 27, 2020, affirmed March 3, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL LEROY CARL,
Defendant-Appellant.
Yamhill County Circuit Court
18CR31177; A170164
482 P3d 207
Ladd J. Wiles, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
PER CURIAM
Affirmed.
Cite as 309 Or App 582 (2021) 583
PER CURIAM
Defendant was found guilty by jury verdict of one
count of strangulation, in violation of ORS 163.187(4) (Count
2); assault in the fourth degree constituting domestic vio-
lence, ORS 163.160(3) (Count 3); harassment, ORS 166.065
(Count 5); criminal mischief in the second degree, ORS
164.354 (Count 6); and escape in the second degree, ORS
162.155 (Count 7). The state dismissed a charge of burglary
in the first degree (Count 1), and the jury acquitted defen-
dant on one count of criminal mischief in the second degree
(Count 4).
On appeal, in the first assignment of error, defen-
dant asserts that the trial court erred by failing to sua
sponte enter a judgment of acquittal on Count 7. We reject
that assignment without discussion.
In the second assignment, defendant asserts that
instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal.
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 for each
count notwithstanding the nonunanimous instruction, the
Oregon Supreme Court has determined that the erroneous
instruction is harmless beyond a reasonable doubt. State v.
Kincheloe, 367 Or 335, 339, 478 P3d 507 (2020). Therefore,
we reject defendant’s second assignment of error.
Affirmed.