STATE v. CARL (2021)

Defendant was found guilty by jury verdict of one count of strangulation, in violation of ORS 163.187(4) (Count 2); assault in the fourth degree constituting domestic violence, ORS 163.160(3) (Count 3); harassment, ORS 166.065 (Count 5); criminal mischief in the second degree, ORS 164.354 (Count 6); and escape in the second degree, ORS 162.155 (Count 7). The state dismissed a charge of burglary in the first degree (Count 1), and the jury acquitted defendant on one count of criminal mischief in the second degree (Count 4).

On appeal, in the first assignment of error, defendant asserts that the trial court erred by failing to sua sponte enter a judgment of acquittal on Count 7. We reject that assignment without discussion.

In the second assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal. 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 explained that nonunanimous jury instruction was 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 second assignment of error.

Affirmed.

PER CURIAM