State v. Rowe

116                    June 5, 2024                 No. 384

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                TYLOR SHAWN ROWE,
                  Defendant-Appellant.
              Klamath County Circuit Court
                22CR24642, 22CR13640;
               A179891 (Control), A180017

  Alycia E. Kersey, Judge.
  Submitted April 24, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Joyce, Judge, and Jacquot,
Judge.
  JOYCE, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)             117

        JOYCE, J.
         Defendant was found guilty by unanimous jury verdicts on counts of second-degree burglary and first-degree
theft in Case No. 22CR24642, and his probation was revoked
in Case No. 22CR13640 based on those guilty verdicts. On
appeal, defendant argues that the judgments in both cases
should be reversed because the trial court plainly erred by
instructing the jurors in Case No. 22CR24642 that a nonguilty verdict must be unanimous. See State v. Martineau,

, 

, rev den, 

(2022) (holding that the trial court plainly erred by instructing the jury that it must return a unanimous nonguilty verdict). Defendant recognizes that, in Martineau, we held that
the error, although plain, was harmless because the jury
returned unanimous guilty verdicts. Id. at 595 (“[D]efendant
cannot persuasively explain how instructing the jury that
it could return nonunanimous verdicts of not guilty would
have affected its unanimous guilty verdicts.”). Defendant
concedes that Martineau is controlling, but he contends that
it should be overruled.
         We begin with “the assumption that our prior cases
were decided correctly, and the party urging us to abandon precedent must affirmatively persuade us to the contrary that a decision is plainly wrong.” State v. McKnight,

, 

, rev den, 

(2018) (internal quotation marks and citation omitted); see
State v. Civil, 

, 

 (2017)
(explaining that the “plainly wrong” standard is a “rigorous
standard grounded in presumptive fidelity to stare decisis”).
Here, defendant has not met that standard. Defendant’s
briefing in this case raises the same arguments and
authorities—including State v. Zolotoff, 

,

 (2014), and State v. Estabrook, 

, 

 (1939)—that we considered and rejected in
Martineau; defendant has not persuaded us that our understanding or treatment of those cases was wrong, let alone
that our decision was plainly wrong in light of them. We
therefore adhere to our prejudice analysis in Martineau and
reject defendant’s assignment of error on the ground that
118                                         State v. Rowe

the instructional error was harmless considering the unanimous guilty verdicts.
        Affirmed.