309 Or. App. 399 - State v. Siler

                                 399

         Submitted October 19, 2020, affirmed February 18, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               MARY ELLEN INGRAM SILER,
                       aka Mary Siler,
                    Defendant-Appellant.
                Lincoln County Circuit Court
                    18CR42161; A169312

481 P3d 1030

Thomas O. Branford, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Affirmed.
400 State v. Siler

PER CURIAM
Defendant was found guilty by unanimous jury verdict on two counts of driving under the influence of intoxicants (DUII) in violation of ORS 813.010(5) (Counts 1 and 4)
and convicted in a bench trial of various misdemeanors that
are not at issue on appeal. Defendant argues, in four assignments of error, that the trial court erred by (1) denying the
motion for judgment of acquittal for Count 1, (2) using the
DUII conviction from Count 1 to inform the sentencing for
Count 4, (3) applying the incorrect criminal history classification to determine a sentence, and (4) providing jury
instructions allowing nonunanimous verdicts. We reject
without written discussion assignments one through three.
In the fourth assignment, defendant asserts that
instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal. After
the United States Supreme Court ruled against nonunanimous verdicts for serious offenses in Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020), the Oregon
Supreme Court explained that providing a nonunanimous
jury instruction is 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 is unanimous for each count notwithstanding the
nonunanimous instruction, the Oregon Supreme Court
has determined that the erroneous instruction is harmless
beyond a reasonable doubt. State v. Kincheloe,

367 Or 335, 339

478 P3d 507

 (2020). Therefore, we reject defendant’s
fourth assignment of error.
        Affirmed.