310 ORAPP 691 - State v. Altamirano

                                  691

    Submitted December 17, 2020, reversed and remanded April 14, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 CORY RAY ALTAMIRANO,
                     Defendant-Appellant.
                Jefferson County Circuit Court
                     19CR30125; A171445

485 P3d 309



   Daniel R. Murphy, Senior Judge.
   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 Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded.
692                                      State v. Altamirano

        PER CURIAM
         Defendant was convicted by jury verdict of violating
a stalking protective order, ORS 163.750(2)(b). On appeal,
defendant argues that the trial court erred by denying
his motion for judgment of acquittal. We reject that argument without discussion. Further, he argues that the trial
court erred in instructing the jury that it need not reach
a unanimous verdict, and contends that, because the erroneous jury instruction constituted a structural error, his
conviction must be reversed in light of Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020), which
held that nonunanimous jury verdicts violate the Sixth
Amendment to the United States Constitution. While the
Oregon Supreme Court rejected the argument that giving
a nonunanimous jury instruction constituted structural
error in State v. Flores Ramos,

367 Or 292, 319

478 P3d 515

(2020), our inquiry does not end there. The question remains
whether the error nonetheless requires reversal.
         In this case, defendant requested in writing that
jury instructions requiring unanimity be provided. The
trial court declined to do so over defendant’s objection. As
we explained in State v. Scott,

309 Or App 615, 619

483 P3d 701

 (2021), the combination of a request for a unanimous
jury instruction and objection at trial was sufficient to preserve the issue concerning a nonunanimous jury instruction
for appeal. We further explained that when the unanimous
verdict instruction issue has been preserved by a criminal
defendant and the erroneous instruction given, it is then
incumbent on the state to demonstrate harmlessness beyond
a reasonable doubt to avoid reversal on appeal.

Id. at 620-21

(applying the federal harmlessness analysis because the
erroneous jury instruction violated the Sixth Amendment).
In this case, defendant preserved the error, the jury was not
polled, and, as a consequence of the omission of the poll, the
state has not demonstrated that the erroneous instruction
was harmless beyond a reasonable doubt. Therefore, defendant is entitled to reversal.

Id. at 621

.
        Reversed and remanded.