STATE v. VERNOR (2021)

Defendant was found guilty by jury verdict of one count of fourth-degree assault and one count of second-degree disorderly conduct. The jury was unanimous in its verdict for the assault count, a felony, but was not polled for the disorderly conduct count, a Class B misdemeanor. On appeal, in two assignments of error, defendant claims that the trial court erred by (1) failing to provide a jury-concurrence instruction, and (2) providing jury instructions allowing nonunanimous verdicts. We reject without written discussion the first assignment of error.

In the second assignment, defendant asserts the trial court plainly erred by instructing the jury that it could return nonunanimous verdicts and that the error requires reversal as structural. After the United States Supreme Court ruled against nonunanimous jury 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 nonunanimous jury instruction was not a structural error that categorically required reversal in every case. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). Additionally, when, as here, the jury returns a unanimous verdict despite the nonunanimous instruction, “the instructional error was harmless as to the unanimous verdict[ ].” Id. at 329, 478 P.3d 515; see also State v. Chorney-Phillips, 367 Or. 355, 359, 478 P.3d 504 (2020) (declining to exercise discretion to review as plain error an unpreserved nonunanimous instruction when the verdict was unanimous).

With respect to the disorderly conduct conviction, assuming, but not providing, that Ramos applies to Class B misdemeanors,¹ because in this case the issue was not preserved and no jury poll was conducted for that count, we decline to exercise our discretion to review as plain error for the reasons set out in State v. Dilallo, 367 Or. 340, 348, 478 P.3d 509 (2020). Therefore, we reject defendant's second assignment of error.

Affirmed.

FOOTNOTES

1.   In Oregon, Class B misdemeanors are punishable by a maximum of six months’ imprisonment. ORS 161.615(2). In Ramos, the Supreme Court held that the right to jury verdict unanimity applies to all felony and serious offenses. 140 S. Ct. at 1397. Petty offenses, in contrast to serious offenses, are punishable by a maximum of six months imprisonment and do not carry the Sixth Amendment guarantee of jury trial. U.S. v. Nachtigal, 507 U.S. 1, 4, 113 S. Ct. 1072, 122 L. Ed. 2d 374 (1993). It remains open, in Oregon, whether the jury unanimity requirement applies to charges without Sixth Amendment guarantees of jury trial.

PER CURIAM