State v. Kuntz

                                 405

        Submitted December 15, 2020, affirmed February 18, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 JOSHUA LEWIS KUNTZ,
                    Defendant-Appellant.
               Washington County Circuit Court
                  18CR03087, 17CR36358;
                 A170240 (Control), A170241
                             

   Richard L. Barron, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Affirmed.
406                                             State v. Kuntz

        PER CURIAM
         In this consolidated appeal, defendant contests his
convictions of failure to perform the duties of a driver to
injured persons, ORS 811.705(2)(a) (Count 1), and unauthorized use of a vehicle, ORS 164.135 (Count 2). 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) entering a judgment of conviction despite insufficient evidence to support a jury verdict of guilt for Count 1,
(2) providing jury instruction allowing nonunanimous verdicts, and (3) relying on the faulty convictions to find violation of probation for earlier convictions. We reject the first
assignment of error without written discussion and, for
the reasons described below, 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. 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). As this issue was not preserved and no
jury poll was conducted, we decline to exercise our discretion to review the nonunanimous jury instructions for plain
error. State v. Dilallo, 

, 

 (2020)
(explaining that plain error review for nonunanimous jury
instructions without an accompanying jury poll is “contrary
to the basic goal of procedural fairness … that motivates
the preservation requirement”). We therefore reject the second assignment of error. Because defendant’s third assignment depends on a determination of reversible error in the
first or second assignment, the third assignment fails.
        Affirmed.