STATE v. ALTAMIRANO (2021)

Defendant was convicted by jury verdict of violating a stalking protective order, ORS 163.750(2)(b). On appeal, defendant argues that the trial court erred by denying his motion for judgment of acquittal. We reject that argument without discussion. Further, he argues that the trial court erred in instructing the jury that it need not reach a unanimous verdict, and contends that, because the erroneous jury instruction constituted a structural error, his conviction must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), which held that nonunanimous jury verdicts violate the Sixth Amendment to the United States Constitution. While the Oregon Supreme Court rejected the argument that giving a nonunanimous jury instruction constituted structural error in State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020), our inquiry does not end there. The question remains whether the error nonetheless requires reversal.

In this case, defendant requested in writing that jury instructions requiring unanimity be provided. The trial court declined to do so over defendant's objection. As we explained in State v. Scott, 309 Or. App. 615, 619, 483 P.3d 701 (2021), the combination of a request for a unanimous jury instruction and objection at trial was sufficient to preserve the issue concerning a nonunanimous jury instruction for appeal. We further explained that when the unanimous verdict instruction issue has been preserved by a criminal defendant and the erroneous instruction given, it is then incumbent on the state to demonstrate harmlessness beyond a reasonable doubt to avoid reversal on appeal. Id. at 620-21, 483 P.3d 701 (applying the federal harmlessness analysis because the erroneous jury instruction violated the Sixth Amendment). In this case, defendant preserved the error, the jury was not polled, and, as a consequence of the omission of the poll, the state has not demonstrated that the erroneous instruction was harmless beyond a reasonable doubt. Therefore, defendant is entitled to reversal. Id. at 621, 483 P.3d 701.

Reversed and remanded.

PER CURIAM