State v. Johnson

                                441

          Submitted May 28, 2020, affirmed February 24, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 CARA ASHLEY JOHNSON,
                    Defendant-Appellant.
               Washington County Circuit Court
                  17CR83701, 17CR30633;
                 A169537 (Control), A169538
                             

   Janelle F. Wipper, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Affirmed.
442                                          State v. Johnson

        PER CURIAM
         In one of these cases consolidated on appeal, defendant contests her convictions of identity theft, ORS 165.800
(Count 1); forgery in the first degree, ORS 165.013 (Count
2); and attempt to commit theft in the first degree, ORS
161.405(2)(d) (Count 3). In the other consolidated case, defendant was found to have violated probation based on her conviction for those crimes. On appeal, defendant claims that
the trial court erred by (1) admitting secondary evidence of
the forged check when the state did not exhaust available
means of producing the original writing and (2) providing a
jury instruction allowing nonunanimous verdicts. We reject
the first assignment without discussion.
         In the second assignment, defendant asserts that
instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal.
Subsequent to the United States Supreme Court’s ruling in
Ramos v. Louisiana, 

, 

, 

 (2020), the Oregon Supreme Court explained that providing a nonunanimous jury instruction was not a structural
error that categorically requires reversal. State v. Flores
Ramos, 

, 

 (2020). Additionally,
when, as here, the jury’s verdict was unanimous for each
count notwithstanding the nonunanimous instruction, the
Oregon Supreme Court has determined that the erroneous
instruction was “harmless beyond a reasonable doubt.” State
v. Ciraulo, 

, 

 (2020). Because
the erroneous instruction was rendered harmless by the
unanimous verdicts, we decline to exercise our discretion to
review defendant’s unpreserved assignment of error. State v.
Chorney-Phillips, 

, 

 (2020).
        Affirmed.