State v. Cam ( 2021 )

208
Submitted May 28, 2020, affirmed March 24, petition for review denied July 29,
2021 (368 Or 511)
STATE OF OREGON,
Plaintiff-Respondent,
v.
NAZARIE VASILICH CAM,
aka Nazari Vasilich Cam,
Defendant-Appellant.
Marion County Circuit Court
18CR02449; A169419
483 P3d 1219
Donald D. Abar, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the opening brief for appel-
lant. Nazarie Vasilich Cam filed the supplemental brief
pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Affirmed.
Cite as 310 Or App 208 (2021) 209
PER CURIAM
Defendant was found guilty by unanimous jury
verdict on one count of felony driving under the influence
of intoxicants (DUII), ORS 813.010 and ORS 813.011. On
appeal, in four assignments of error, defendant claims that
the trial court plainly erred by (1) failing to exclude evidence
that defendant refused a breath test, (2) providing a breath-
test-refusal jury instruction, (3) providing a jury instruc-
tion allowing nonunanimous verdicts, and (4) entering a
conviction for felony DUII based on prior convictions from
the states of Washington and Minnesota. We reject with-
out written discussion the first and second assignments of
error.1
In the third assignment, defendant asserts that
instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal.
After the United States Supreme Court ruled, in Ramos
v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d
583 (2020), that nonunanimous jury verdicts for serious
offenses were unconstitutional, the Oregon Supreme Court
explained that providing a nonunanimous jury instruction
was not a structural error that categorically requires rever-
sal in every case. State v. Flores Ramos, 367 Or 292, 319, 478
P3d 515 (2020). When, as here, the jury’s verdict was unan-
imous despite the nonunanimous instruction, that errone-
ous instruction was “harmless beyond a reasonable doubt.”
State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020); see
also State v. Chorney-Phillips, 367 Or 355, 359, 478 P3d 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
third assignment of error.
Finally, in defendant’s fourth assignment, he
argues that the trial court plainly erred by entering a felony
DUII conviction based on prior DUII convictions in other
states, which enhanced the offence from a misdemeanor to
a felony. He argues that the Washington and Minnesota
1
Defendant also has filed a pro se supplemental brief in which he makes no
assignments of error. We reject the arguments in that brief without discussion as
well.
210 State v. Cam
statutes under which he was convicted were not “statutory
counterparts” to ORS 813.010. While this appeal was pend-
ing, the Oregon Supreme Court, in State v. Guzman/Heckler,
366 Or 18, 455 P3d 485 (2019), provided additional contour
to the “statutory counterpart” analysis required under ORS
813.010 and ORS 813.011.2 With this additional contour, it is
not “obvious” or “not reasonably in dispute” that either the
Washington DUII or Minnesota DUII statutes are not the
statutory counterparts of ORS 813.010. Defendant’s unpre-
served fourth assignment of error is, therefore, not plain
error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381,
823 P2d 956 (1991).
Affirmed.
2
In Guzman/Heckler, the Oregon Supreme Court analyzed both Kansas and
Colorado DUII statutes to determine if they were statutory counterparts to ORS
813.010. It held that, because the Kansas DUII statute included conduct that is
treated as less culpable in Oregon, the Kansas statute was not the counterpart
of Oregon’s. 366 Or at 43-44. The specific Colorado statute was determined not
to be the statutory counterpart to ORS 813.010 because it criminalized driving
while even “imperceptibly intoxicated,” which falls below the “perceptible degree”
of intoxication threshold for ORS 813.010. Id. at 46-47.