State v. Ramirez

626                     July 2, 2025                No. 594

   This is a nonprecedential memorandum opinion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.
            SHEENA RENEE RAMIREZ,
                 Defendant-Appellant.
             Marion County Circuit Court
   21CR46576, 20CR67148; A181821 (Control), A181822

   Jodie A. Bureta, Judge.
   Submitted May 13, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
   POWERS, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)             627

        POWERS, J.
         In this consolidated criminal appeal, defendant
seeks reversal of a judgment convicting her on two counts
of recklessly endangering another person in Case No.
21CR46576 and the related judgment revoking her probation in Case No. 20CR67148, which was based on those convictions. On appeal, defendant advances two assignments of
error. First, she argues that the trial court erred in denying
her motion to suppress evidence. Second, she contends that
the court plainly erred when it failed to instruct the jury
that it must concur on each incident that constituted recklessly endangering another person. We affirm.
         Motion to Suppress. In her first assignment, which
challenges the trial court’s denial of her motion to suppress,
defendant argues that our decision in State v. Krause, 

, 

 (2016), rev den, 

 (2017),
is plainly wrong and should be overruled. We reject that
argument for the reasons explained in State v. Stevens, 

, 

 (2023), rev den, 

(2024).
         Concurrence Instruction. In her second assignment,
defendant contends that the jury heard two different factual
bases for the charges of recklessly endangering another person—defendant’s act of driving under the influence of intoxicants with two children as passengers and her failure to
ensure that each of the children was properly secured in the
car while she was driving—and that the trial court erred
by not instructing the jurors that they had to concur as to
which of those factual occurrences was the reckless conduct.
Acknowledging that she did not raise that contention before
the trial court, defendant asserts that the court’s failure
to give that instruction constitutes plain error. See ORAP
5.45(1) (allowing discretionary review of “plain” errors);
State v. Vanornum, 

, 

 (2013)
(explaining that an error is “plain” when it is an error of law,
is obvious and not reasonably in dispute, and is apparent on
the record without having to choose among competing inferences). In response, the state argues that no such instruction was required because the state was relying on a single course of conduct and adducing alternative evidence to
628                                           State v. Ramirez

prove the elements of the offense, not presenting alternative
factual theories. See State v. Greeley, 

,

 (2008) (holding that the trial court was not
required to instruct the jury that it must concur on which
factual occurrence supported the verdict where the defendant “could have committed several acts that, alternatively,
constituted evidence of a single element—recklessness—in
an episode of driving that lasted no more than four minutes”; the state, in that circumstance, “was entitled to rely
on the entire course of defendant’s driving to establish the
element of recklessness”). In light of Greeley, it is not obvious
or beyond reasonable dispute that a concurrence instruction
regarding the reckless conduct was required on this record.
See, e.g., State v. Serrano, 

, 

(2014), cert den, 

 (2015) (explaining that the
“obviousness” requirement of plain-error review requires an
appellant to demonstrate both that (1) the legal principles
are “obvious” and beyond reasonable dispute and (2) applying those “obvious” legal principles to the circumstances of
the case show that the trial court erred). Accordingly, we
reject defendant’s argument that the court plainly erred in
failing to give a concurrence instruction.
         Affirmed.