STATE v. VILLINES (2021)

Defendant was found guilty by jury verdict on two counts of first-degree sexual abuse, ORS 163.427 (Counts 1 and 2); two counts of attempted first-degree unlawful sexual penetration, ORS 161.405(2)(b) (Counts 3 and 5); and one count each of attempted rape in the first degree, ORS 161.405(2)(b) (Count 4), first-degree sodomy, ORS 163.405 (Count 6), and failure to report as a sex offender, ORS 163A.040(3)(b) (Count 9). Defendant was acquitted of one count of first-degree sexual abuse (Count 7) and one count of attempt to commit first-degree rape (Count 8). On appeal, defendant assigns error to the trial court's (1) alleged use of information outside the evidence in the record to deny a motion for judgment of acquittal; (2) denial of his motion for judgment of acquittal; and (3) jury instructions allowing nonunanimous verdicts. We reject without written discussion assignments of error one and two.

In the third assignment of error, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal or warranting review for plain error. Subsequent to the United States Supreme Court's ruling in Ramos v. Louisiana, 590 US ––––, 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). As this issue was not preserved and no jury poll was conducted, we decline to exercise our discretion to review the nonunanimous jury instructions for plain error. State v. Dilallo, 367 Or. 340, 348-49, 478 P.3d 509 (2020) (explaining that plain error review for nonunanimous jury instructions without an accompanying jury poll is “contrary to the basic goal of procedural fairness * * * that motivates the preservation requirement”).

Affirmed.

PER CURIAM