STATE v. MCCRARY (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Dathan Jude MCCRARY, Defendant-Appellant.

A170317

Decided: March 10, 2021

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Defendant was convicted by unanimous jury verdicts of second-degree burglary, ORS 164.215, and second-degree theft, ORS 164.045. He argues on appeal that the trial court erred in failing to give his requested instruction on the meaning of the term, “open to the public,” and plainly erred in instructing the jury that it could return nonunanimous verdicts. We reject without discussion defendant's first argument. With respect to his argument that the court plainly erred in instructing the jury that it need not reach unanimous verdicts, defendant contends that because of the erroneous jury instruction, his convictions by unanimous verdicts must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), because the error constitutes structural error. In a memorandum of additional authorities, the state notes that that argument was rejected in State v. Chorney-Phillips, 367 Or. 355, 478 P.3d 504 (2020) and its companion cases. We reject defendant's argument for the reasons set forth in those cases.

Affirmed.

PER CURIAM

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