State v. White

                                   587

 Submitted November 23, 2020, affirmed March 3, petition for review denied
                       July 15, 2021 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   JOSHUA BRUCE WHITE,
                    aka Joshua Bruce Luethe,
                      Defendant-Appellant.
                  Jackson County Circuit Court
                      14CR05514; A170303
                               

  Lisa C. Greif, Judge. (Judgment)
  Lorenzo A. Mejia, Judge. (Supplemental Judgment)
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
  PER CURIAM
  Affirmed.
588                                            State v. White

        PER CURIAM
         Defendant was found guilty by jury verdict on three
counts of first-degree theft, ORS 164.055 (Counts 2, 3, and 4).
The jury found defendant guilty on additional theft offenses,
but those guilty verdicts were merged with the other counts.
Defendant’s appeal assigns eight errors. Assignments one
through six allege error in denying motions for judgment of
acquittal at the close of the state’s case-in-chief; assignment
seven alleges error for entry of a judgment of second-degree
theft for Count 6 instead of the charged and convicted thirddegree theft; and assignment eight alleges error in the jury
instructions allowing for nonunanimous verdicts. We reject
without discussion assignments of error one through six.
Assignment of error seven is moot because the error in the
judgment regarding Count 6 was corrected to reflect thirddegree theft while this appeal has been pending.
         In the eighth assignment of error, defendant asserts
that instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal or
warranting review for plain error. Subsequent to the United
States Supreme Court’s ruling in Ramos v. Louisiana, 

, 

, 

 (2020), the Oregon
Supreme Court explained that giving a nonunanimous jury
instruction was 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”).
        Affirmed.