Opinion
A168454
02-10-2021
STATE of Oregon, Plaintiff-Respondent, v. Zhivago Caya RHODES, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge.
PER CURIAM Defendant was found guilty by jury verdict on two counts of first-degree sexual abuse, ORS 163.427 (Counts 1 and 2). Defendant's timely appeal assigns error to (1) the admission of evidence regarding a medical diagnosis of child sexual abuse; (2) the failure to strike or provide a curative instruction for the prejudicial evidence of the medical diagnosis of child sex abuse; (3) ineffective assistance of counsel in violation of the Oregon and United States Constitutions; and (4) a nonunanimous jury instruction. We reject without written discussion the first, second, and third assignments of error.
Ineffective assistance of counsel claims must be raised and resolved under the post-conviction relief procedure established by statute in Oregon and not on direct appeal. State v. Dell , 156 Or. App. 184, 188, 967 P.2d 507, rev. den. , 328 Or. 194, 977 P.2d 1172 (1998).
In the fourth assignment of error, defendant asserts that instructing the jury that it could return nonunanimous verdicts constituted a structural error warranting review for plain error. Subsequent to the United States Supreme Court ruling in Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L.Ed.2d 583 (2020), the Oregon Supreme Court explained that a nonunanimous jury instruction was not a structural error that categorically required reversal. State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020). As defendant did not preserve this issue, nor was the jury polled, 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.