State v. Rhodes ( 2021 )

318
Submitted May 29, 2020, affirmed February 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ZHIVAGO CAYA RHODES,
Defendant-Appellant.
Linn County Circuit Court
17CR84551; A168454
481 P3d 412
Thomas McHill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Eric Johansen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Kistler, Senior Judge.
PER CURIAM
Affirmed.
Cite as 309 Or App 318 (2021) 319
PER CURIAM
Defendant was found guilty by jury verdict on two
counts of first-degree sexual abuse, ORS 163.427 (Counts
1 and 2). Defendant’s timely appeal assigns error to (1) the
admission of evidence regarding a medical diagnosis of child
sexual abuse; (2) the failure to strike or provide a curative
instruction for the prejudicial evidence of the medical diag-
nosis of child sex abuse; (3) ineffective assistance of counsel
in violation of the Oregon and United States Constitutions;
and (4) a nonunanimous jury instruction. We reject without
written discussion the first, second, and third1 assignments
of error.
In the fourth assignment of error, defendant asserts
that instructing the jury that it could return nonunanimous
verdicts constituted a structural error warranting review
for plain error. Subsequent to the United States Supreme
Court 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 required reversal. State
v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). As
defendant did not preserve this issue, nor was the jury
polled, we decline to exercise our discretion to review the
nonunanimous jury instructions for plain error. State v.
Dilallo, 367 Or 340, 348-49, 478 P3d 509 (2020) (explaining
that plain error review for nonunanimous jury instructions
without an accompanying jury poll is “contrary to the basic
goal of procedural fairness * * * that motivates the preserva-
tion requirement”).
Affirmed.
1
Ineffective assistance of counsel claims must be raised and resolved under
the post-conviction relief procedure established by statute in Oregon and not on
direct appeal. State v. Dell, 156 Or App 184, 188, 967 P2d 507, rev den, 328 Or 194(1998).