State v. Cam

Submitted May 28, 2020, affirmed March 24, petition for review denied July 29,

2021 (368 Or 511)

STATE OF OREGON, Plaintiff-Respondent, v. NAZARIE VASILICH CAM, aka Nazari Vasilich Cam, Defendant-Appellant.

Marion County Circuit Court

18CR02449; A169419

483 P3d 1219 Donald D. Abar, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appel- lant. Nazarie Vasilich Cam filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julia Glick, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

PER CURIAM Affirmed.

Cite as 310 Or App 208 (2021) 209

PER CURIAM Defendant was found guilty by unanimous jury verdict on one count of felony driving under the influence of intoxicants (DUII), ORS 813.010 and ORS 813.011. On appeal, in four assignments of error, defendant claims that the trial court plainly erred by (1) failing to exclude evidence that defendant refused a breath test, (2) providing a breath- test-refusal jury instruction, (3) providing a jury instruc- tion allowing nonunanimous verdicts, and (4) entering a conviction for felony DUII based on prior convictions from the states of Washington and Minnesota. We reject with- out written discussion the first and second assignments of error.1

In the third assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal. After the United States Supreme Court ruled, in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), that nonunanimous jury verdicts for serious offenses were unconstitutional, the Oregon Supreme Court explained that providing a nonunanimous jury instruction was not a structural error that categorically requires rever- sal in every case. State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020). When, as here, the jury’s verdict was unan- imous despite the nonunanimous instruction, that errone- ous instruction was “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or 350, 354, 478 P3d 502 (2020); see also State v. Chorney-Phillips, 367 Or 355, 359, 478 P3d 504 (2020) (declining to exercise discretion to review as plain error an unpreserved nonunanimous instruction when the verdict was unanimous). Therefore, we reject defendant’s third assignment of error.

Finally, in defendant’s fourth assignment, he argues that the trial court plainly erred by entering a felony DUII conviction based on prior DUII convictions in other states, which enhanced the offence from a misdemeanor to a felony. He argues that the Washington and Minnesota 210 State v. Cam statutes under which he was convicted were not “statutory counterparts” to ORS 813.010. While this appeal was pend- ing, the Oregon Supreme Court, in State v. Guzman/Heckler, 366 Or 18, 455 P3d 485 (2019), provided additional contour to the “statutory counterpart” analysis required under ORS 813.010 and ORS 813.011.2 With this additional contour, it is not “obvious” or “not reasonably in dispute” that either the Washington DUII or Minnesota DUII statutes are not the statutory counterparts of ORS 813.010. Defendant’s unpre- served fourth assignment of error is, therefore, not plain error. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381, 823 P2d 956 (1991).

Affirmed.