STATE v. BORCHMAN (2020)

Defendant appeals a judgment of conviction for nine offenses. On each of the nine counts, the jury found defendant guilty by a nonunanimous verdict. In his first assignment of error, defendant claims that the trial court erred in admitting a prior consistent statement of a witness. The balance of defendant's assignments of error challenge as plain error the court's decision to instruct the jury that it could return nonunanimous verdicts and its acceptance of nonunanimous verdicts. As the state concedes, the court plainly erred in accepting the nonunanimous verdicts in view of the Supreme Court's decision in Ramos v. Louisiana, ––– U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). For the reasons similar to those articulated in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020), we accept the state's concession and exercise our discretion to correct that plain error. We do not address defendant's claim of evidentiary error, because the evidence may develop differently on retrial. See State v. Wellington, 304 Or. App. 455, 456, 466 P.3d 96 (2020) (taking analogous approach).

Reversed and remanded.

PER CURIAM