State v. Vernor

                                770

           Submitted May 26, 2020, affirmed March 10, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               MAURICE LADON VERNOR,
                   Defendant-Appellant.
               Jackson County Circuit Court
                   18CR41769; A168733
                            

  Lorenzo A. Mejia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2021)                                              771

           PER CURIAM
         Defendant was found guilty by jury verdict of one
count of fourth-degree assault and one count of seconddegree disorderly conduct. The jury was unanimous in its
verdict for the assault count, a felony, but was not polled
for the disorderly conduct count, a Class B misdemeanor.
On appeal, in two assignments of error, defendant claims
that the trial court erred by (1) failing to provide a juryconcurrence instruction, and (2) providing jury instructions
allowing nonunanimous verdicts. We reject without written
discussion the first assignment of error.
          In the second assignment, defendant asserts the
trial court plainly erred by instructing the jury that it could
return nonunanimous verdicts and that the error requires
reversal as structural. 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 required reversal in
every case. State v. Flores Ramos, 

, 

 (2020). Additionally, when, as here, the jury returns a
unanimous verdict despite the nonunanimous instruction,
“the instructional error was harmless as to the unanimous
verdict[ ].” 

; 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).
        With respect to the disorderly conduct conviction,
assuming, but not providing, that Ramos applies to Class B
misdemeanors,1 because in this case the issue was not preserved and no jury poll was conducted for that count, we

    1
      In Oregon, Class B misdemeanors are punishable by a maximum of six
months’ imprisonment. ORS 161.615(2). In Ramos, the Supreme Court held that
the right to jury verdict unanimity applies to all felony and serious offenses.
590 US at ___, 

. Petty offenses, in contrast to serious offenses,
are punishable by a maximum of six months imprisonment and do not carry the
Sixth Amendment guarantee of jury trial. U.S. v. Natchtigal, 

, 

, 

 (1993). It remains open, in Oregon, whether the jury
unanimity requirement applies to charges without Sixth Amendment guarantees of jury trial.
772                                          State v. Vernor

decline to exercise our discretion to review as plain error
for the reasons set out in State v. Dilallo, 

,

 (2020). Therefore, we reject defendant’s second
assignment of error.
        Affirmed.