State v. Roy

                               768

         Submitted August 20, 2020, affirmed March 10, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                CHARLES DOUGLAS ROY,
                   Defendant-Appellant.
              Washington County Circuit Court
                   17CR85013; A168162
                            

  Ricardo J. Menchaca, Judge.
  Frances J. Gray filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General, filed the briefs for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2021)                             769

        PER CURIAM
          Defendant was found guilty by unanimous jury
verdict on multiple felony and serious misdemeanor counts
stemming from a Christmas Day 2017 armed confrontation of the ex-boyfriend of a friend’s daughter. On appeal,
in five total assignments of error, defendant claims that the
trial court erred by (1) failing to merge the convictions for
unlawful use of a firearm (Count 2) with felon in possession of a firearm (Count 7); (2) failing to sua sponte dismiss
the case due to the use of a secret indictment; (3) allowing
trial to proceed based on an “overbroad” indictment without
a specific list of property alleged for the robbery charges;
(4) prejudicing the jury at the outset of the trial by reading
the felon-in-possession charge which alleged several prior
felony convictions; and (5) providing jury instructions allowing nonunanimous verdicts. We reject without written discussion each assignment of error except for the assignment
regarding the nonunanimous jury instruction, which we
address below.
         In his first additional supplemental assignment,
defendant asserts that the trial court plainly erred by
instructing the jury that it could return nonunanimous verdicts and that that error requires reversal as a structural
error. After the United States Supreme Court ruled against
nonunanimous jury verdicts for serious offenses in Ramos
v. Louisiana, 

, 

, 

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

, 

 (2020). Additionally, when,
as here, the jury’s verdicts were—as defendant concedes—
unanimous despite the nonunanimous instruction, such
erroneous instruction was “harmless beyond a reasonable
doubt.” State v. Ciraulo, 

, 

 (2020);
see also State v. Chorney-Phillips, 

, 

 (2020) (declining to exercise discretion to review as plain
error an unpreserved nonunanimous instruction when the
verdict was unanimous). Therefore, we reject defendant’s
first additional supplemental assignment of error.
        Affirmed.