STATE v. SANGROLLA (2021)

Defendant was convicted by jury on one count of first-degree rape and four counts of first-degree sexual abuse. The jury was unanimous on the sexual abuse counts, but was not unanimous on Count 5, first-degree rape. Defendant argues on appeal that the trial court erred in admitting certain evidence, in instructing the jury that it could return nonunanimous verdicts, and in imposing restitution. We reject defendant's evidentiary arguments without discussion. The state concedes that defendant's conviction for first-degree rape based on a nonunanimous verdict must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept that concession. Defendant argues that his remaining convictions also should be reversed based on the erroneous nonunanimous verdict instruction. We reject that argument for the reasons set forth in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts. The state also concedes that the trial court erred in imposing restitution. However, our reversal of Count 5 obviates the need to address that issue.

Count 5 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM