221
Submitted March 4; conviction on Count 2 reversed and remanded, remanded
for resentencing, otherwise affirmed March 24; petition for review denied
July 8, 2021 (368 Or 347)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANGEL ALEXANDER NEGRON,
Defendant-Appellant.
Washington County Circuit Court
19CR02972; A171946
483 P3d 1259
Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Weston Koyama, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
222 State v. Negron
PER CURIAM
Defendant was found guilty by a unanimous jury
on one count of first-degree robbery, ORS 164.415 (Count 1),
and by a nonunanimous jury on one count of unlawful use
of a weapon, ORS 166.220 (Count 2). On appeal, defendant
argues that the trial court plainly erred in instructing the
jury it need not be unanimous, and in entering a nonunanimous verdict on Count 2. Defendant also argues that the
court plainly erred in failing to strike portions of the prosecutor’s rebuttal argument, in failing to give a curative
instruction, and in failing to order a mistrial.
With respect to defendant’s unpreserved claims
about the prosecutor’s closing argument, we agree that the
argument was improper. The prosecutor argued as follows:
“[PROSECUTOR:] In order for you to acquit [defendant], you would have to go back to the jury room and
decide, ‘Okay. When we’re evaluating the testimony and
all the evidence in the case, even though the statements
[defendant] made to the police were not testimony,’ right,
you would have to decide, ‘We believe him over [the victim].’
“In other words, ‘We think [the victim] is either lying or
mistaken,’ even though he took the witness stand and took
an oath and told you, ‘This is how it went down,’ crystal
clear, unimpeached. And instead of that, ‘We believe what
this guy who is a thief and is a documented liar claimed
when the cops stopped him. We find that more credible
than this.’ ”
That argument is problematic for several reasons,
most significantly because it may have impermissibly suggested to the jury that it could draw an adverse inference
from defendant’s exercise of his constitutional right not to
testify. However, that the prosecutor’s comment had that
effect cannot be said to be “obvious” and “not reasonably in
dispute” so as to be grounds for reversal in this unpreserved
posture. Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82,
823 P2d 956 (1991).
With respect to the nonunanimous jury issues,
defendant asserts that instructing the jury that it could
return nonunanimous verdicts constituted a structural
error requiring reversal of both convictions. Subsequent
Cite as 310 Or App 221 (2021) 223
to the United States Supreme Court’s ruling in Ramos v.
Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583
(2020), the Oregon Supreme Court explained in State v.
Flores Ramos that a nonunanimous jury instruction was
not a structural error that categorically required reversal
in every case.
367 Or 292, 319,
478 P3d 515 (2020). When
the jury’s verdict was unanimous despite the nonunanimous instruction, such erroneous instruction was “harmless beyond a reasonable doubt” with respect to the unanimous verdicts.
Id. at 329. We therefore affirm defendant’s
conviction on Count 1. With respect to the nonunanimous
verdict on Count 2, the state concedes that this constitutes
reversible error. We agree. For the reasons set forth in State
v. Ulery,
366 Or 500,
464 P3d 1123 (2020), we exercise our
discretion to correct the plain error and, therefore, reverse
and remand the conviction as to Count 2.
Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.
