STATE v. RICHARDSON (2021)

Defendant was convicted by jury verdict of delivery of methamphetamine (Count 1) and possession of methamphetamine (Count 2). The jury was instructed that its verdicts need not be unanimous, which was error under the Sixth Amendment. See Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The jury was unanimous as to Count 2, but not as to Count 1.

On appeal, defendant argues that the trial court plainly erred in giving the nonunanimous jury instruction, that the error was structural error, and that both of his convictions therefore should be reversed. The state concedes that defendant is entitled to reversal on the nonunanimous count. We agree and accept the concession, and exercise discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020). As for defendant's structural error argument concerning the remaining conviction, he makes the same arguments that were rejected in State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), and its companion cases.

Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM