STATE v. GUENTHER (2021)

A jury unanimously found defendant guilty of third-degree robbery, ORS 164.395. On appeal, defendant contends that the trial court erred in denying a motion for judgment of acquittal and, additionally, in failing to properly instruct the jury in several respects. We reject without written discussion all of the assignments of error except the final two, which concern nonunanimous jury instructions.

In the fifth assignment of error, defendant argues that the trial court erred by instructing the jury that it could return a nonunanimous verdict and, in the sixth, by publishing a verdict form to the jury allowing the same. 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 was unanimous despite the nonunanimous instruction, such erroneous instruction was “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or. 350, 354, 478 P.3d 502 (2020). Since the nonunanimous instruction was rendered harmless by the unanimous verdict, it follows that providing the jury verdict return form allowing a nonunanimous verdict was similarly harmless. Flores Ramos, 367 Or. at 319, 478 P.3d 515. Therefore, we reject defendant's fifth and sixth assignments of error.

Affirmed.

PER CURIAM