STATE v. WILBURN (2021)

Defendant was convicted by jury verdict on two counts of first-degree sexual abuse (Counts 1 and 2), one count of second-degree rape (Count 3), and one count of third-degree rape (Count 4). 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 Counts 1 and 4, but was not unanimous as to Counts 2 and 3.

On appeal, defendant argues that the trial court plainly erred in giving the nonunanimous jury instruction, that the error was structural error, and that all of his convictions therefore should be reversed. The state concedes that defendant is entitled to reversal on the nonunanimous counts. 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 convictions, he makes the same arguments that were rejected in State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), and its companion cases.

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

PER CURIAM