This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Payton, 298 Or. App. 22, 445 P.3d 338 (2019), and remanded for reconsideration in light of State v. Henderson, 366 Or. 1, 455 P.3d 503 (2019). In our prior opinion, we concluded that the trial court erred in denying defendants motion for a judgment of acquittal on the charge of first-degree burglary, ORS 164.225; we concluded that there was sufficient evidence that defendant remained unlawfully in his nieces house, but insufficient evidence that he formed intent to commit assault at the requisite time to sustain a conviction for first-degree burglary. Payton, 298 Or. App. at 29, 445 P.3d 338. Now, reviewing this case again for errors of law, State v. Bivins, 191 Or. App. 460, 467, 83 P.3d 379 (2004), and in light of the Supreme Courts holding in Henderson, that a defendant need only develop the requisite intent to commit an additional crime at some point during the course of a criminal trespass, we conclude that the trial court did not err in denying defendants motion for judgment of acquittal.
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We further reject defendants arguments, raised for the first time on remand, that the trial court committed structural error by instructing the jury that it could return a nonunanimous verdict. Accordingly, we affirm.
We take the facts and pertinent procedural history from our earlier opinion in this case:
“Defendant and his family were staying with his niece for a week. One evening, after defendant began yelling and threatening to kill his niece, she asked him to leave. Defendant refused and said that he would leave the next day. Someone called for a taxi and left defendants packed bags by the front door, but the taxi left without defendant. Defendants father-in-law, who lived across the street, became aware of the incident and decided to go to the nieces house—without notifying anyone—to find out ‘what was going on.’ When he arrived, defendant emerged from a bedroom and punched his father-in-law in the face, and a fight ensued. The police arrived, and defendant was arrested.”
Payton, 298 Or. App. at 24-25, 445 P.3d 338. Based on those events, the state charged defendant with one count of first-degree burglary, two counts of fourth-degree assault, and one count of strangulation. Id. at 25, 445 P.3d 338. After the state presented its case-in-chief, defendant moved for a judgment of acquittal on the first-degree burglary charge, arguing that, to be convicted of first-degree burglary, defendant had to have “knowingly * * * entered, or remained in [the house] with the intent to commit the crime of assault therein.” Id. (emphasis in original). The court denied defendants motion, and he was subsequently found guilty of first-degree burglary and fourth-degree assault. After the verdict was announced, the court asked if either party wished to poll the jury, and both parties declined.
On appeal and again on remand, defendant argues that the state failed to prove that he formed the intent to commit assault at a time when he had no license or privilege to be in his nieces house. The state maintains that there was sufficient evidence that defendant formed the intent to assault the victim while he was unlawfully remaining in the house. We originally concluded, applying State v. J. N. S., 258 Or. App. 310, 318-19, 308 P.3d 1112 (2013), that the proper focus was defendants intent at the initiation of the trespass and, because the record lacked evidence that defendant intended to commit assault at the point that he unlawfully remained on the premises, he was entitled to an acquittal. Payton, 298 Or. App. at 29, 445 P.3d 338. That analysis changes under Henderson.
The issue on review in that case was whether a person commits the crime of first-degree burglary when they enter a dwelling unlawfully but without the intent to commit an additional crime and then develop that intent while unlawfully present in the dwelling. Henderson, 366 Or. at 3, 455 P.3d 503. The defendant and the victim were formerly in a relationship and, although the victim previously had allowed the defendant to visit their children at her house, he had never lived there, and the victim ultimately communicated to the defendant that he was no longer welcome. Id. On the day of the incident, the defendant went to the victims house asking if he could shower and talk. Id. After being refused entry, the defendant waited for the victim to depart for work and then broke into the house and destroyed a number of her possessions. Id.
The defendant was charged with first-degree burglary, along with other crimes. Id. During trial, after the state rested its case, the defendant moved for a judgment of acquittal on the burglary charge arguing that “the evidence could not support a finding that defendant intended to commit an additional crime in the victims house at the time of this unlawful entry.” Id. The trial court denied the motion and the defendant was subsequently found guilty of burglary and criminal mischief. Id.
On appeal, the defendant argued that the trial court erred in denying the motion for judgment of acquittal on the burglary charge. We reversed the burglary conviction and held that the state was required to prove that the defendant had the intent to commit an additional crime when he entered the victims house and that the evidence was insufficient to support a finding of such intent. State v. Henderson, 294 Or. App. 664, 670, 432 P.3d 388 (2018), revd, 366 Or. 1, 455 P.3d 503 (2019). We remanded for entry of a judgment of conviction for the lesser-included offense of first-degree trespass.
In reversing our decision, the Supreme Court concluded that the “proper inquiry is not whether [the] defendant had the requisite intent at the outset of the trespass, but rather whether defendant developed intent to commit an additional crime at any point during the course of the trespass.” Henderson, 366 Or. at 14, 455 P.3d 503. It reasoned that, because the defendant committed criminal trespass by unlawfully entering and remaining in the victims home, “and because defendant developed the intent to commit an additional crime—and did commit an additional crime—while unlawfully present in the house,” the trial court correctly denied the defendants motion. Id.
In light of the courts analysis in Henderson, the result in this case is clear. As in that case, defendant in this case committed criminal trespass by remaining in his nieces house after refusing to leave and, because he developed intent to commit and did commit another crime while unlawfully remaining at his nieces house, the trial court correctly denied defendants motion.
Defendant additionally asserts that the trial court committed structural error by instructing the jury that it could return a nonunanimous verdict. After the United States Supreme Courts ruling in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d. 583 (2020), the Oregon Supreme Court concluded that giving a nonunanimous jury instruction is not a structural error that categorically requires reversal. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). As defendant did not preserve the issue in this case and no jury poll was conducted, we 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.
FOOTNOTES
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. We decline to revisit our original conclusion that the evidence was sufficient to permit a finding that defendant unlawfully remained in his nieces house at the time he assaulted the victim; although defendant reargues that point, Henderson does not call that conclusion into question. We further reject without discussion defendants arguments challenging retroactive application of Henderson to his case.
ORTEGA, P. J.