STATE v. KRIEGER (2021)

Defendant was convicted by jury on one count of delivery of heroin (Count 1) and one count of possession of heroin (Count 2). The jury was unanimous on Count 2, but not on Count 1. Defendant argues on appeal that the trial court erred in denying his motion to suppress evidence, in declining to give his proffered unanimous jury instruction and instructing the jury that it could return nonunanimous verdicts, and in accepting a nonunanimous verdict. We reject defendant's argument concerning the motion to suppress without discussion. The state concedes that defendant's conviction on Count 1 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 conviction 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.

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

PER CURIAM