nonunanimous jury instruction in Oregon

2023In State v. Dilallo, the Supreme Court considered an unpreserved challenge to a nonunanimous jury instruction when there was no evidence as to whether the verdict was unanimous or not. 367 Or 340, 346 , 478 P3d 509 (2020).

2023In State v. Dilallo, the Supreme Court considered an unpreserved challenge to a nonunanimous jury instruction when there was no evidence as to whether the verdict was unanimous or not. 367 Or 340, 346 , 478 P3d 509 (2020).

2023State v. Scott, 309 Or App 615, 620-21 , 483 P3d 701 (2021) (in the context of a nonunanimous jury instruction, the state has the burden to demonstrate that error was harmless beyond a reasonable doubt).

2023State v. Scott, 309 Or App 615, 620-21 , 483 P3d 701 (2021) (in the context of a nonunanimous jury instruction, the state has the burden to demonstrate that error was harmless beyond a reasonable doubt).

2022Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020) (Sixth Amendment requires that the jury be unanimous to convict a criminal defendant of a serious offense); State v. Ulery, 366 Or 500, 501 , 464 P3d 1123 (2020) (concluding that trial court’s acceptance of a nonunanimous verdict constituted plain error and exercising discretion to correct that error).

2022Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020) (Sixth Amendment requires that the jury be unanimous to convict a criminal defendant of a serious offense); State v. Ulery, 366 Or 500, 501 , 464 P3d 1123 (2020) (concluding that trial court’s acceptance of a nonunanimous verdict constituted plain error and exercising discretion to correct that error).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or.App. 611, 619 , 196 P.3d 97 (2008), rev. den., 345 Or. 618 , 201 P.3d 909 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or.App. 594, 596-97 , 198 P.3d 978 (2008), rev. den., 346 Or. 364 , 213 P.3d 578 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2021And for the reasons set forth in State v. Chorney-Phillips, 367 Or 355 , 478 P3d 504 (2020), we reject defendant’s sixth assignment of error related to the court’s nonunanimous jury instruction.

2021And for the reasons set forth in State v. Chorney-Phillips, 367 Or 355 , 478 P3d 504 (2020), we reject defendant’s sixth assignment of error related to the court’s nonunanimous jury instruction.

2026We concluded that the petitioner had not met his burden to prove that the nonunanimous jury instruction was conse- quential to his conviction, because there was nothing in the Cite as 350 Or App 620 (2026) 625 record to suggest that the verdicts were actually nonunan- imous, such as a “dispositive” jury poll.

2026We concluded that the petitioner had not met his burden to prove that the nonunanimous jury instruction was conse- quential to his conviction, because there was nothing in the Cite as 350 Or App 620 (2026) 625 record to suggest that the verdicts were actually nonunan- imous, such as a “dispositive” jury poll.

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or.App. 611, 619 , 196 P.3d 97 (2008), rev. den., 345 Or. 618 , 201 P.3d 909 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or.App. 594, 596-97 , 198 P.3d 978 (2008), rev. den., 346 Or. 364 , 213 P.3d 578 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2010As defendant acknowledges, this court has previously rejected the arguments he raises in his second and third assignments of error in State v. Jones, 223 Or App 611, 619 , 196 P3d 97 (2008), rev den, 345 Or 618 (2009) (holding that the first-degree theft statute does not require a thief to know the value of the stolen property), and, in addition to other cases, State v. Cobb, 224 Or App 594, 596-97 , 198 P3d 978 (2008), rev den, 346 Or 364 (2009) (holding that the trial court did not err in giving a nonunanimous jury instruction).

2024On appeal, petitioner argues that the post- conviction court erred in dismissing the petition because, although the jury verdicts were unanimous, the petition could have been amended to argue that his trial counsel was ineffective in failing to object to a nonunanimous jury instruction. 1 ORS 138.590(5) provides in part that if “appointed counsel believes that the original petition cannot be construed to state a ground for relief under ORS 138.510 to 138.680, and cannot be amended to state a ground for relief, counsel shall, in lieu of moving to amend the petition, inform the petitioner and no

2023In supplemental briefing, defendant also challenges his conviction for unlawful delivery of methamphetamine (Count 2) as plain error under our recent decision in State v. Hubbell, 314 Or App 844 , 500 P3d 728 (2021), rev allowed, 369 Or 504 (2022).

2023In supplemental briefing, defendant also challenges his conviction for unlawful delivery of methamphetamine (Count 2) as plain error under our recent decision in State v. Hubbell, 314 Or App 844 , 500 P3d 728 (2021), rev allowed, 369 Or 504 (2022).

2022Cite as 321 Or App 704 (2022) 719 Counts 2 through 5 reversed; remanded for resen- tencing; otherwise affirmed.

2022Held: Given State v. Phelps, 141 Or App 555, 558 , 902 P2d 1098 , rev den, 324 Or 306 (1996)—which defendant did not argue should be overruled— any error in failing to instruct the jury that a culpable mental state of know- ingly applied with respect to that element of the offenses was not plain; nothing in Haltom or Simonov displaced Phelps’s conclusion that requiring proof that a defendant knew of the victim’s incapacity would be inconsistent with the affirma- tive defense in ORS 163.325(3) and its legislative history.

2021Held: Defendant’s plain-error argument about the breath test was foreclosed by the Court of Appeals’ decision in State v. Smith, 302 Or App 787, 791 , 462 P3d 310 (2020); the nonunanimous jury instruction was foreclosed by State v. Flores Ramos, 367 Or 292 , 478 P3d 515 (2020); and even assuming a concurrence or election instruction was required, the error was harmless.

2021Held: Defendant’s plain-error argument about the breath test was foreclosed by the Court of Appeals’ decision in State v. Smith, 302 Or App 787, 791 , 462 P3d 310 (2020); the nonunanimous jury instruction was foreclosed by State v. Flores Ramos, 367 Or 292 , 478 P3d 515 (2020); and even assuming a concurrence or election instruction was required, the error was harmless.

2021Cite as 310 Or App 367 (2021) 369 offenses in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court held that providing a nonunanimous jury instruction was not a structural error that categorically requires reversal in every case.

2021After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses in Ramos Cite as 310 Or App 357 (2021) 359 v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court held that providing a nonunanimous jury instruction was not a structural error that categorically requires reversal in every case.

2021Subsequent Cite as 310 Or App 221 (2021) 223 to the United States Supreme Court’s ruling in Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the Oregon Supreme Court explained in State v. Flores Ramos that a nonunanimous jury instruction was not a structural error that categorically required reversal in every case. 367 Or 292, 319 , 478 P3d 515 (2020).

2021State v. Burke, 311 Or App 611, 612 , 489 P3d 1125 (2021).

2021State v. Burke, 311 Or App 611, 612 , 489 P3d 1125 (2021).

2021In Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020), the United States Supreme Court held that the Sixth Amendment to the United States Constitution requires a jury to be unanimous to convict a Cite as 313 Or App 708 (2021) 711 defendant of a serious criminal offense.

2020Erosion of Public Confidence Finally, defendant argues that a nonunanimous jury instruction constitutes structural error because it “erodes public confidence in the jury-trial right.” However, the Supreme Court has emphasized that “the harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Fulm

2020Erosion of Public Confidence Finally, defendant argues that a nonunanimous jury instruction constitutes structural error because it “erodes public confidence in the jury-trial right.” However, the Supreme Court has emphasized that “the harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Fulm

2020Erosion of Public Confidence Finally, defendant argues that a nonunanimous jury instruction constitutes structural error because it “erodes public confidence in the jury-trial right.” However, the Supreme Court has emphasized that “the harmless-error doctrine is essential to preserve the ‘principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.’ ” Fulm