State v. Vida

                                401

        Submitted October 19, 2020, affirmed February 18, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               GEORGE MATTHEW VIDA,
                   Defendant-Appellant.
               Yamhill County Circuit Court
                  18C43763, 16CR55252;
                A169630 (Control), A169638
                            

  Ladd J. Wiles, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John P. Evans, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Beth Andrews, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Affirmed.
402                                                         State v. Vida

          PER CURIAM
         In this consolidated appeal, defendant contests
his conviction of criminal mischief in the first degree, ORS
164.365 (Count 1); criminal mischief in the second degree,
ORS 164.354 (Count 2); and two counts of criminal trespass
in the second degree, ORS 164.245 (Counts 3 and 4). As a
result of those convictions, defendant was found to have
violated probation from an earlier conviction. On appeal,
defendant claims, in three assignments of error, that the
trial court erred by (1) denying his motion for substitution of
counsel, (2) providing a jury instruction allowing nonunanimous verdicts, and (3) relying on the faulty convictions to
find that defendant violated probation imposed for earlier
convictions. We reject the first assignment of error without
written discussion, and, for the reasons described below, we
also reject the second and third assignments.
         In the second assignment, defendant asserts that
instructing the jury that it could return nonunanimous verdicts constitutes a structural error requiring reversal.1 After
the United States Supreme Court ruled against nonunanimous verdicts for serious offenses in Ramos v. Louisiana, 

, 

, 

 (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, 

,

 (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, 

, 

 (2020). We therefore reject the second
assignment of error. Because defendant’s third assignment
depends on a determination of reversible error as to the first
or second assignment, the third assignment fails.
          Affirmed.


     1
       Although defendant’s assignment as to the nonunanimous jury instruction
encompasses both felony and misdemeanor jury verdicts, because, in this case,
all the verdicts were unanimous, we need not address any argument as to the
applicability of Ramos to Class C misdemeanors.