Opinion
A170090 (Control) A170091
03-03-2021
STATE of Oregon, Plaintiff-Respondent, v. John Steven YEAGER, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.
PER CURIAM
In this consolidated appeal, defendant appeals a conviction by jury verdict for menacing, ORS 163.190 (Count 4). As a result of that conviction, defendant was found in violation of his probation stemming from an earlier conviction for fourth-degree assault. Defendant was acquitted of first-degree robbery, second-degree robbery, and unlawful use of a weapon. A charge for felon in possession of a restricted weapon was dismissed by the state at the early stages of trial. On appeal, in the first assignment of error, defendant asserts the trial court erred by failing to declare a mistrial when the jury was informed of defendant's prior felony conviction during introductory jury instructions. We reject without written discussion that assignment of error.
In the second assignment, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error requiring reversal. Subsequent to the United States Supreme Court's ruling in Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the Oregon Supreme Court explained that nonunanimous jury instruction was not a structural error that categorically requires reversal. State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020). Because, in this case, defendant did not preserve an objection to the nonunanimous jury instruction, his claimed error is reviewable only for plain error. See State v. Chorney-Phillips , 367 Or. 355, 359, 478 P.3d 504 (2020). Here, no jury poll was conducted, and we therefore decline to exercise our discretion to review the nonunanimous jury instructions for plain error. State v. Dilallo , 367 Or. 340, 348-49, 478 P.3d 509 (2020) (explaining that plain error review for nonunanimous jury instructions without an accompanying jury poll is "contrary to the basic goal of procedural fairness * * * that motivates the preservation requirement").
Affirmed.