State v. Belgarde ( 2021 )

166
Submitted August 10, 2020, affirmed March 17, petition for review denied
July 15, 2021 (368 Or 402)
STATE OF OREGON,
Plaintiff-Respondent,
v.
GARY LYNN BELGARDE, JR.,
Defendant-Appellant.
Marion County Circuit Court
18CR10653; A169632
483 P3d 688
Donald D. Abar, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Affirmed.
Cite as 310 Or App 166 (2021) 167
PER CURIAM
Defendant was found guilty by unanimous jury ver-
dict on one count of felon in possession of a firearm and one
count of unlawful possession of a firearm. On appeal, in two
assignments of error, defendant claims that the trial court
(1) erred by denying a motion for judgment of acquittal, and
(2) plainly erred by providing jury instructions allowing
nonunanimous verdicts. We reject without written discus-
sion the first assignment of error.
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 a nonunanimous jury instruction was not a structural
error that categorically requires reversal in every case.
State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020).
Additionally, when, as here, the jury’s verdicts were unan-
imous despite the nonunanimous instruction, such 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
second assignment of error.
Affirmed.