In this consolidated appeal, defendant contests convictions for first-degree theft and first-degree failure to appear. Defendant claims the trial court erred by (1) denying the motion for judgment of acquittal in the failure-to-appear case, (2) imposing a probation sentence in the failure-to-appear-case, and (3 and 4) instructing the jury that it could return nonunanimous verdicts in both the theft and the failure-to-appear cases. Because we conclude that the trial court erred by denying the motion for judgment of acquittal for failure to appear, we reverse the judgment in that case, and do not reach the other assignments of error related to that case.
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We affirm the conviction for first-degree theft.
In the first assignment, defendant argues that the trial court erred by denying his motion for judgment of acquittal for first-degree failure to appear. While defendant does not dispute that he did not personally appear in several pending cases, he argues that, under the terms of the release agreements, he was not required to, but instead could appear through counsel. The state concedes that the relevant release agreements did not require defendants personal appearance and that the court should have granted the motion for judgment of acquittal. As we have explained in State v. Kelly, 307 Or. App. 268, 269, 475 P.3d 126 (2020), and State v. Lobue, 300 Or. App. 340, 347, 453 P.3d 929 (2019), because the relevant release agreements did not unambiguously require defendants personal appearance, his appearance through counsel was sufficient to meet the statutory appearance requirement. See ORS 162.205(1). Therefore, we accept the states concession and reverse the conviction.
In the fourth assignment, defendant asserts that instructing the jury that it could return a nonunanimous verdict in the first-degree theft case constituted a structural error requiring reversal. After the United States Supreme Court ruled against nonunanimous jury verdicts for serious offenses in Ramos v. Louisiana, 590 U.S. ––––, 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. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). When, as here, the jury returns a unanimous verdict despite the nonunanimous instruction, such erroneous instruction is “harmless beyond a reasonable doubt.” State v. Ciraulo, 367 Or. 350, 354, 478 P.3d 502 (2020).
In Case No. 18CR74486, reversed. In Case No. 18CR59415, affirmed.
FOOTNOTES
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. We note that, for the reasons explained in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020), because the jury returned a guilty verdict with only 11 guilty votes for failure to appear, we would have needed to reverse and remand. However, because defendant should have been granted his motion for judgment of acquittal, we resolve the appeal on that basis as it provides defendant with more substantial relief.
PER CURIAM