State v. Stewart

Submitted October 20, 2020, affirmed March 31, petition for review denied August 26, 2021 (368 Or 515)

STATE OF OREGON,

Plaintiff-Respondent, v.

GREGORY D’ANDRE STEWART,

Defendant-Appellant.

Marion County Circuit Court 18CR71310, 19CN01656;

A170992 (Control), A170993 484 P3d 397

Audrey J. Broyles, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appel- lant. Gregory D. Stewart filed the supplemental brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Affirmed.

Cite as 310 Or App 376 (2021) 377 PER CURIAM

In these consolidated appeals, defendant seeks reversal of a judgment of conviction based on unanimous jury verdicts of one count each of unauthorized use of a vehicle, ORS 164.135, and identity theft, ORS 165.800.1 Defendant assigns error to the trial court’s denial of a motion for judg- ment of acquittal, imposition of a partially consecutive sen- tence for the convictions, and instruction to the jury that it could return nonunanimous verdicts. We reject without written discussion all of the assignments of error except that related to the nonunanimous jury instruction.

Regarding the giving of a nonunanimous jury instruction, defendant asserts that it was a structural error that requires reversal. Subsequent to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained that a nonunanimous jury instruction was not a structural error that categorically requires reversal. State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). Additionally, when, as here, the jury’s verdict was unani- mous despite the nonunanimous instruction, such an erro- neous instruction was harmless beyond a reasonable doubt. State v. Kincheloe, 367 Or 335, 339, 478 P3d 507 (2020). Affirmed.