State v. Wigginton

                                   367

   Submitted October 20, 2020; in Case No. 18CR74486, reversed; in Case
 No. 18CR59415, affirmed March 31; petition for review denied July 29, 2021
                               (

)


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             PATRICK MANNING WIGGINTON,
                    Defendant-Appellant.
                 Lane County Circuit Court
                  18CR59415, 18CR74486;
                 A170015 (Control), A170016
                               

  Charles D. Carlson, Judge. (Judgment in Case No.
18CR59415)
  Debra E. Velure, Judge. (Judgment in Case No.
18CR74486)
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   In Case No. 18CR74486, reversed. In Case No. 18CR59415,
affirmed.
368                                                    State v. Wigginton

           PER CURIAM
         In this consolidated appeal, defendant contests
convictions for first-degree theft and first-degree failure to
appear. Defendant claims the trial court erred by (1) denying
the motion for judgment of acquittal in the failure-to-appear
case, (2) imposing a probation sentence in the failure-toappear case, and (3 and 4) instructing the jury that it could
return nonunanimous verdicts in both the theft and the
failure-to-appear cases. Because we conclude that the trial
court erred by denying the motion for judgment of acquittal
for failure to appear, we reverse the judgment in that case,
and do not reach the other assignments of error related to
that case.1 We affirm the conviction for first-degree theft.
         In the first assignment, defendant argues that
the trial court erred by denying his motion for judgment
of acquittal for first-degree failure to appear. While defendant does not dispute that he did not personally appear in
several pending cases, he argues that, under the terms of
the release agreements, he was not required to, but instead
could appear through counsel. The state concedes that the
relevant release agreements did not require defendant’s personal appearance and that the court should have granted
the motion for judgment of acquittal. As we have explained
in State v. Kelly, 

, 

 (2020),
and State v. Lobue, 

, 

 (2019),
because the relevant release agreements did not unambiguously require defendant’s personal appearance, his appearance through counsel was sufficient to meet the statutory
appearance requirement. See ORS 162.205(1). Therefore, we
accept the state’s concession and reverse the conviction.
         In the fourth assignment, defendant asserts that
instructing the jury that it could return a nonunanimous
verdict in the first-degree theft case constituted a structural
error requiring reversal. After the United States Supreme
Court ruled against nonunanimous jury verdicts for serious
    1
      We note that, for the reasons explained in State v. Ulery, 

,

 (2020), because the jury returned a guilty verdict with only 11
guilty votes for failure to appear, we would have needed to reverse and remand.
However, because defendant should have been granted his motion for judgment of
acquittal, we resolve the appeal on that basis as it provides defendant with more
substantial relief.
Cite as 

 (2021)                            369

offenses in Ramos v. Louisiana, 

, 

,

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

, 

(2020). When, as here, the jury returns a unanimous verdict despite the nonunanimous instruction, such erroneous
instruction is “harmless beyond a reasonable doubt.” State v.
Ciraulo, 

, 

 (2020).
      In Case No. 18CR74486, reversed. In Case No.
18CR59415, affirmed.