STATE v. ELMORE (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Joseph Mark ELMORE, Defendant-Appellant.

A168907

Decided: February 10, 2021

Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge.*

Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Defendant appeals a judgment of multiple convictions after unanimous jury verdicts, raising multiple assignments of error. He preserved none of his assignments except one challenging a jury instruction allowing nonunanimous verdicts. We reject all of defendant's assignments and write only to address the one relating to the nonunanimous jury instruction.

Defendant asserts that the jury instruction allowing nonunanimous verdicts constitutes a structural error. Subsequent to the United States Supreme Court's ruling in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the Oregon Supreme Court held that nonunanimous jury instruction is not a structural error that categorically requires reversal. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). Additionally, when, as here, the jury's verdict is unanimous for each count notwithstanding the nonunanimous instruction, the Supreme Court has determined that the erroneous instruction is “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or. 350, 354, 478 P.3d 502 (2020). Therefore, we reject defendant's challenge to the nonunanimous instruction resulting in a unanimous verdict.

Affirmed.

PER CURIAM

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