State v. Wigginton

• Decision Date: 31 March 2021
• Docket Number: A170015 (Control),A170016
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Patrick Manning WIGGINTON, Defendant-Appellant.
• Court: Oregon Court of Appeals

310 Or.App. 367

484 P.3d 1103

STATE of Oregon, Plaintiff-Respondent,

v.Patrick Manning WIGGINTON, Defendant-Appellant.

A170015 (Control)

A170016

Court of Appeals of Oregon.

Submitted October 20, 2020.

March 31, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Kirsten M. Naito, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM

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.¹ 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 defendant's 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 defendant's personal appearance, his appearance through counsel was sufficient to meet the statutory appearance requirement. See ORS 162.205(1). Therefore, we accept the state's 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...