STATE v. VIDA (2021)

In this consolidated appeal, defendant contests his conviction of criminal mischief in the first degree, ORS 164.365 (Count 1); criminal mischief in the second degree, ORS 164.354 (Count 2); and two counts of criminal trespass in the second degree, ORS 164.245 (Counts 3 and 4). As a result of those convictions, defendant was found to have violated probation from an earlier conviction. On appeal, defendant claims, in three assignments of error, that the trial court erred by (1) denying his motion for substitution of counsel, (2) providing a jury instruction allowing nonunanimous verdicts, and (3) relying on the faulty convictions to find that defendant violated probation imposed for earlier convictions. We reject the first assignment of error without written discussion, and, for the reasons described below, we also reject the second and third assignments.

In the second assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal.¹ 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). We therefore reject the second assignment of error. Because defendant's third assignment depends on a determination of reversible error as to the first or second assignment, the third assignment fails.

Affirmed.

FOOTNOTES

1.   Although defendant's assignment as to the nonunanimous jury instruction encompasses both felony and misdemeanor jury verdicts, because, in this case, all the verdicts were unanimous, we need not address any argument as to the applicability of Ramos to Class C misdemeanors.

PER CURIAM