STATE v. NEWTON (2020)

Defendant was convicted of strangulation constituting domestic violence, ORS 163.187(2), by nonunanimous jury verdict. On appeal, defendant argues that (1) the trial court erred by refusing to instruct the jury that it must find that defendant lacked the alleged victim's consent when he choked her and (2) the court's acceptance of a nonunanimous verdict constitutes plain error under the Sixth Amendment to the United States Constitution. In Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the United States Supreme Court concluded that nonunanimous jury verdicts violate the Sixth Amendment. In State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020), the Oregon Supreme Court concluded that a trial court's acceptance of a nonunanimous verdict constitutes plain error. Further, the Supreme Court exercised its discretion to correct that plain error because of its gravity and because failure to raise the issue in the trial court did not weigh heavily against correction. Even if the issue had been raised, the trial court would not have been able to correct the error under Oregon law as it existed at that time.

The state concedes, and we agree, that the trial court's acceptance of a nonunanimous verdict on the strangulation count constitutes plain error. In light of that concession, we need not address defendant's first assignment of error concerning instructional error related to strangulation and lack of consent. For the reasons set forth in Ulery, we exercise our discretion to correct the error in this case.

Reversed and remanded.

PER CURIAM