STATE v. GARCIA MONTEJANO (2021)

Defendant was found guilty by jury verdict of delivery of methamphetamine, in violation of ORS 475.890(2) (Count 1), and unlawful possession of methamphetamine, ORS 475.894(2)(b). On appeal, raising four assignments of error, defendant claims that the trial court plainly erred by (1) instructing the jury that the state did not need to prove that defendant knew of the particular type of controlled substance that he possessed, merely that he knew that he possessed it and that it was illegal; (2) providing jury instructions allowing nonunanimous verdicts; (3) accepting the jury verdicts after providing the defective nonunanimous instruction; and (4) violating vertical proportionality principles by applying the statutory crime seriousness category of 10, while arguably more serious crimes are only classified at level 8. We reject without written discussion the first and fourth assignments.

In the second assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal. In the related third assignment, defendant contends that receiving a jury verdict based on the impermissible nonunanimous instruction is similarly structural error. After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020), the Oregon Supreme Court explained 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 Oregon Supreme Court has determined that the erroneous instruction is harmless beyond a reasonable doubt. State v. Kincheloe, 367 Or. 335, 336, 478 P.3d 507 (2020). It follows that receiving a unanimous verdict despite nonunanimous jury instruction is similarly harmless. State v. Flores Ramos, 367 Or. at 319, 478 P.3d 515. Therefore, we reject defendant's second and third assignments of error.

Affirmed.

PER CURIAM