State v. Yeager

                                580

          Submitted October 27, 2020, affirmed March 3, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                JOHN STEVEN YEAGER,
                   Defendant-Appellant.
               Malheur County Circuit Court
                  18CR71616, 15CR1528;
                A170090 (Control), A170091
                             

   Lung S. Hung, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
   PER CURIAM
   Affirmed.
Cite as 

 (2021)                             581

        PER CURIAM
          In this consolidated appeal, defendant appeals a
conviction by jury verdict for menacing, ORS 163.190 (Count
4). As a result of that conviction, defendant was found in
violation of his probation stemming from an earlier conviction for fourth-degree assault. Defendant was acquitted
of first-degree robbery, second-degree robbery, and unlawful use of a weapon. A charge for felon in possession of a
restricted weapon was dismissed by the state at the early
stages of trial. On appeal, in the first assignment of error,
defendant asserts the trial court erred by failing to declare
a mistrial when the jury was informed of defendant’s prior
felony conviction during introductory jury instructions. We
reject without written discussion that assignment of error.
         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
nonunanimous jury instruction was not a structural error
that categorically requires reversal. State v. Flores Ramos,

, 

 (2020). Because, in this case,
defendant did not preserve an objection to the nonunanimous jury instruction, his claimed error is reviewable only
for plain error. See State v. Chorney-Phillips, 

, 

 (2020). Here, no jury poll was conducted,
and we therefore 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”).
        Affirmed.