State v. Irwin

                                  618

  Submitted April 14; remanded for entry of judgment omitting no-contact
               provision, otherwise affirmed May 19, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                MATTHEW SHANE IRWIN,
                    Defendant-Appellant.
               Hood River County Circuit Court
                    16CR32239; A171436
                               

  Karen Ostrye, Judge.
  Kenneth A. Kreuscher filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
   Remanded for entry of judgment omitting no-contact provision; otherwise affirmed.
Cite as 

 (2021)                             619

         PER CURIAM
         Defendant appeals a judgment of conviction for
first-degree assault, ORS 163.185. He assigns error to the
trial court’s imposition of a no-contact order as a condition
of incarceration and the court’s instruction to the jury that
it could convict by a less than unanimous verdict.
         After a jury unanimously found defendant guilty of
first-degree assault, the trial court sentenced defendant to
90 months in prison and 36 months of post-prison supervision. It also imposed a condition that he have no direct or
indirect contact with the victim or her family. On appeal,
defendant contends that the trial court plainly erred by
imposing a no-contact provision in a judgment imposing
a sentence of incarceration. The state concedes that the
trial court plainly erred. See State v. Coventry, 

, 

 (2018) (concluding that the trial court
plainly erred when it imposed a no-contact order in a judgment imposing a term of incarceration). We agree that the
court plainly erred and exercise our discretion to correct the
error for the reasons cited in State v. Hall, 

,

 (2016), rev den, 

 (2017). Accordingly,
we reverse that portion of the judgment and remand with
instructions to omit the no-contact provision. Coventry, 

 (specifying that remedy).
         Next, defendant contends that the trial court
plainly erred in giving the nonunanimous jury instruction and that the court’s error constitutes structural error
requiring reversal. The state concedes that the trial court’s
instruction that the verdict need not be unanimous was
erroneous under Ramos v. Louisiana, 

, 

, 

 (2020), but the state contends that
the error was harmless because the verdict was unanimous. We agree that the error was harmless. State v. Flores
Ramos, 

, 

 (2020) (concluding that
nonunanimous jury instruction was not a structural error
that categorically requires reversal); State v. Ciraulo, 

, 

 (2020) (concluding that an erroneous nonunanimous jury instruction was “harmless beyond a
reasonable doubt” when the verdict was unanimous).
         Remanded for entry of judgment omitting no-contact
provision; otherwise affirmed.