State v. Postlethwait, 493 P.3d 35

Defendant picked up a crab ring from an outdoor display at a sporting-goods shop; the shop owner (victim) confronted him, the encounter turned aggressive, and the victim feared being harmed and kicked defendant. Defendant left; police later identified and arrested him.
A jury found defendant guilty of second-degree robbery (Count 1), third-degree robbery (Count 2), and third-degree theft (Count 3). The trial court merged the two robbery convictions into one second-degree robbery conviction but entered a separate third-degree theft conviction.
On direct appeal, defendant argued that the third-degree theft conviction should merge into the robbery conviction; the Court of Appeals originally affirmed without opinion. The Oregon Supreme Court granted review, vacated, and remanded in light of Martinez v. Cain.
On remand the State conceded that, under Martinez, the trial court plainly erred in entering separate convictions for robbery and theft because the theft was the factual and legal predicate for the robbery.
The Court of Appeals accepted the concession, reversed the theft conviction, ordered entry of a single conviction for second-degree robbery, and remanded for resentencing; all other issues were affirmed.
Defendant’s new argument on remand—that a nonunanimous-jury instruction was structural error—was rejected as foreclosed by Flores Ramos and, in any event, harmless beyond a reasonable doubt under Ciraulo.

Issue	State's Argument	Postlethwait's Argument	Held
Whether third-degree theft must merge into second-degree robbery under ORS 161.067(1)	The theft was the factual and legal predicate for the robbery, so merger is required under Martinez	Theft and robbery convictions may be separately punishable; merger not required	Merger required; theft conviction reversed and merged into single second-degree robbery conviction; remand for resentencing
Whether giving an erroneous nonunanimous-jury instruction was structural error requiring reversal	Any instructional error is not structural; prior authority forecloses overturning; verdicts were unanimous so any error was harmless	Instructional error was structural and requires reversal	Rejected: Flores Ramos forecloses structural-error claim; any error harmless beyond a reasonable doubt under Ciraulo

Martinez v. Cain, 366 Or 136 (Or. 2020) (robbery elements subsumed in related offense can require merger under ORS 161.067(1))
State v. Oldham, 301 Or App 82 (Or. App. 2019) (standard of review for merger questions: errors of law; recite facts in light most favorable to state)
State v. Camacho-Alvarez, 225 Or App 215 (Or. App. 2009) (exercise of appellate discretion to review plain error on merger issues)
State v. Flores Ramos, 367 Or 292 (Or. 2020) (addressing nonunanimous-jury instruction issues and limiting structural-error claims)
State v. Ciraulo, 367 Or 350 (Or. 2020) (harmless-error analysis for unanimous verdicts despite erroneous jury instruction)