STATE v. SANTOS VASQUEZ (2021)

Defendant was convicted by jury on two counts of first-degree sexual abuse (Counts 2 and 3), one count of first-degree sodomy (Count 5), one count of second-degree sodomy (Count 6), and one count of second-degree unlawful sexual penetration (Count 7). The jury returned unanimous verdicts on Counts 6 and 7, but was not unanimous on Counts 2, 3, and 5. On appeal, defendant argues that the trial court erred in failing to give a less-satisfactory-evidence jury instruction, in instructing the jury that it could return nonunanimous verdicts and, in accepting nonunanimous verdicts. He makes additional arguments in a supplemental pro se brief concerning the testimony of a witness. We reject defendant's less-satisfactory-evidence and pro se arguments without discussion. The state concedes that defendant's convictions on Counts 2, 3, and 5, which were based on nonunanimous verdicts, 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 not structural error and was harmless with respect to unanimous verdicts.

Counts 2, 3, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM