State v. Evans ( 2021 )

773
Submitted November 24, 2020, affirmed March 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ROBERT EDWARD EVANS,
Defendant-Appellant.
Douglas County Circuit Court
18CR29878; A170967
482 P3d 817
Ann Marie Simmons, Judge.
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
Affirmed.
774 State v. Evans
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 judg-
ment 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 nonunan-
imous verdicts was similarly a structural error. 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 is 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 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 P3d 502 (2020). Since the nonunanimous instruc-
tion was rendered harmless by the unanimous verdicts, it
follows that providing the jury verdict return form allow-
ing nonunanimous verdicts is similarly harmless. Flores
Ramos, 367 Or at 319. Therefore, we reject defendant’s third
and fourth assignments of error.
Affirmed.