STATE v. LOPEZ GARCIA (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Andres LOPEZ-GARCIA, Defendant-Appellant.

A169912

Decided: April 14, 2021

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.

Defendant was convicted by jury verdict of first-degree assault constituting domestic violence, ORS 163.185. On appeal he argues that the trial court plainly erred in instructing the jury that it need not reach unanimous verdicts, 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). The Supreme Court rejected that argument in State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). Further, because the jury was not polled, we decline to exercise our discretion to review the plain error. See State v. Dilallo, 367 Or. 340, 349, 478 P.3d 509 (2020) (taking the same approach). We therefore reject defendant's argument concerning the nonunanimous jury instruction.

Affirmed.

PER CURIAM

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