STATE v. SILER (2021)

Defendant was found guilty by unanimous jury verdict on two counts of driving under the influence of intoxicants (DUII) in violation of ORS 813.010(5) (Counts 1 and 4) and convicted in a bench trial of various misdemeanors that are not at issue on appeal. Defendant argues, in four assignments of error, that the trial court erred by (1) denying the motion for judgment of acquittal for Count 1, (2) using the DUII conviction from Count 1 to inform the sentencing for Count 4, (3) applying the incorrect criminal history classification to determine a sentence, and (4) providing jury instructions allowing nonunanimous verdicts. We reject without written discussion assignments one through three.

In the fourth assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal. After the United States Supreme Court ruled against nonunanimous 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 providing a 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, 339, 478 P.3d 507 (2020). Therefore, we reject defendant's fourth assignment of error.

Affirmed.

PER CURIAM