STATE v. SOSNA (2021)

Defendant appeals a judgment of conviction after a jury found him guilty of second-degree sexual abuse (Count 1), third-degree rape (Count 2), menacing (Count 4, misdemeanor), and unlawful use of a weapon (Count 5).¹ The jury's verdict on Count 1 was 11-1; on the other counts, the jury was unanimous. Defendant first assigns error to the trial court's denial of his motion for judgment of acquittal on Count 5. We reject that argument without written discussion. In supplemental briefing, he further contends that the trial court plainly erred in instructing the jury that it could return a nonunanimous verdict and in receiving a nonunanimous verdict. The state concedes that defendant's conviction based on a nonunanimous verdict (Count 1) 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 the concession, and we 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 his remaining convictions, which were based on unanimous jury verdicts, we reject that argument for the reasons set forth in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), and State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020).

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

FOOTNOTES

1.   The court merged defendant's guilty verdict on Count 2 with the guilty verdict on Count 1. Defendant was acquitted of a further count, second-degree kidnapping (Count 3).

PER CURIAM