State v. Moreno , 318 Or. App. 149 ( 2022 )

149
Submitted October 19, 2020, affirmed March 2, petition for review denied
July 7, 2022 (370 Or 56)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAIME MORENO,
Defendant-Appellant.
Malheur County Circuit Court
18CR80256; A170311
506 P3d 1148
Erin K. Landis, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeHoog, Judge pro tempore.
PER CURIAM
Affirmed.
150 State v. Moreno
PER CURIAM
Defendant appeals a judgment of conviction for
first-degree burglary, ORS 164.225. Defendant raises four
assignments of error, all of which defendant concedes are
unpreserved and as to which he seeks plain error review. In
his first assignment of error, defendant argues that the trial
court plainly erred by failing to dismiss the first-degree
burglary charge sua sponte, because the indictment failed
to specify which crime defendant intended to commit within
a dwelling and instead alleged his “intent to commit the
crime of Menacing and/or Harassment therein.” Relatedly,
defendant’s second assignment asserts that the court
plainly erred by failing to instruct the jury that 10 or more
of its members must concur as to the specific crime that he
intended to commit within the dwelling.1 Defendant’s third
claim of error is that the trial court plainly erred in ranking
his burglary conviction a crime Category 9 offense, when
the jury was asked to find whether he had “threatened and/
or attempted to cause physical injury to the occupant” of the
dwelling, rather than whether he had “threatened or caused
physical injury,” as required by OAR 213-018-0025(1)(b).
(Emphasis added.) Finally, defendant asserts that the trial
court plainly erred in giving a nonunanimous jury instruc-
tion, although no jury poll was taken.
We reject defendant’s first assignment of error with-
out discussion. As to his second assignment, we agree that
the trial court should have given a jury concurrence instruc-
tion as to the specific crime that defendant intended to com-
mit within the dwelling. See State v. Frey, 248 Or App 1, 9,
273 P3d 143 (2012), rev den, 354 Or 814 (2014) (holding in
similar circumstances that trial court was required to give
“Boots” instruction as to the specific offense that the defen-
dant intended to commit, citing State v. Boots, 308 Or 371,
780 P2d 725 (1989), cert den, 510 US 1013, 114 S Ct 606,
126 L Ed 2d 571 (1993). We agree, however, for the reasons
articulated by the state, that the error was harmless; that
1
Defendant’s trial was held before the United States Supreme Court issued
its decision in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d
583 (2020), requiring jury unanimity under the Sixth Amendment to the United
States Constitution.
Cite as 318 Or App 149 (2022) 151
conclusion precludes reversal, even if the error was plain.
See State v. T. W., 300 Or App 646, 647, 452 P3d 1081 (2019)
(“Because the error is harmless, plain or not plain, we may
not correct it on appeal.”).
Turning to defendant’s third assignment of error,
we again conclude that the trial court did not commit
reversible error. That is, assuming without deciding that
the trial court plainly erred in sentencing defendant under
crime Category 9 without first requiring the jury to find
that defendant had “threatened or caused physical injury,”
OAR 213-018-0025(1)(b), we decline to exercise our dis-
cretion to correct the error. Here the asserted error could
have been avoided had defendant raised the issue at any
of several points in his prosecution, including by seeking a
jury instruction that tracked the applicable rule2 or by chal-
lenging the classification at sentencing, because it would be
contrary to general preservation principles. Moreover, given
the way in which the case was tried and the fact that the
jury found defendant guilty of an actual assault in the same
trial, the jury is unlikely to have found that defendant had
“attempted to cause physical injury” without also finding
that he had threatened the same thing. In light of those con-
siderations, the slight discrepancy between the language of
the jury instruction and the actual requirements of OAR
213-018-0025(1)(b) is not, in this case, sufficient to overcome
the general goals of preservation, i.e., procedural fairness to
the parties and to the trial court. Ailes v. Portland Meadows,
Inc., 312 Or 376, 382, 823 P2d 956 (1991) (listing various
factors relevant to discretionary decision whether to review
plain error). Accordingly, we reject defendant’s third assign-
ment of error.
Finally, although we agree that the trial court
plainly erred in instructing the jury that its verdict need
not be unanimous, see State v. Ulery, 366 Or 500, 503, 464
P3d 1123 (2020), defendant’s argument that he has demon-
strated reversible error notwithstanding the lack of a jury
poll has been rejected by the Supreme Court in State v.
2
The instruction that the trial court gave tracked the language of the
indictment rather than OAR 213-018-0025(1)(b) (stating relevant aggravating
factor).
152 State v. Moreno
Dilallo, 367 Or 340, 348, 478 P3d 509 (2020). We must do
the same.
Affirmed.