STATE v. JEFFERY (2021)

Defendant was convicted by jury verdict of delivery of methamphetamine (Count 1), unlawful possession of methamphetamine (Count 2), and unlawful possession of a firearm (Count 4). The jury had been instructed that its verdicts did not need to be unanimous, which was error under the Sixth Amendment to the United States Constitution. See Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The jury was unanimous as to Counts 2 and 4, but not as to Count 1.

On appeal, defendant argues that the trial court erred in giving the nonunanimous jury instruction, that the error was structural, and that all 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 our 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 convictions, he makes the same arguments that were rejected in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020).

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

PER CURIAM