Summary
explaining that our case law forecloses the same unpreserved claim of error concerning jury unanimity
Summary of this case from State v. SmithOpinion
A166193
05-01-2019
STATE of Oregon, Plaintiff-Respondent, v. Joshua Daniel WELTCH, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jamie K. Contreras, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
PER CURIAMAppealing a judgment of conviction for felon in possession of a firearm, ORS 166.270, defendant assigns error to the trial court’s (1) failure to supply a concurrence instruction to the jury, (2) failure to instruct the jury that it was required to reach a unanimous jury verdict, and (3) acceptance of a nonunanimous jury verdict. Defendant’s first assignment of error is not preserved and the error, if any, is not plain. Defendant’s remaining assignments of error are foreclosed by our case law. State v. Bowen , 215 Or. App. 199, 202, 168 P.3d 1208 (2007), adh’d to as modified on recons. , 220 Or. App. 380, 185 P.3d 1129, rev. den. , 345 Or. 415, 197 P.3d 1104 (2008), cert. den. , 558 U.S. 815, 130 S.Ct. 52, 175 L.Ed.2d 21 (2009).
We note that the United States Supreme Court has granted certiorari in Ramos v. Louisiana , ––– U.S. ––––, 139 S. Ct. 1318, ––– L.Ed. 2d –––– (2019), to consider (again) the question of whether the Sixth Amendment to the United States Constitution requirement of jury unanimity applies to the states via the Fourteenth Amendment to the United States Constitution.
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Affirmed.