STATE v. DAMIAN (2021)

Defendant appeals a judgment of conviction for two counts of felony fourth-degree assault (domestic violence), Counts 1 and 3. Over defendant's objection, the trial court instructed the jury that it could return nonunanimous verdicts. The jury's verdict on Count 1 was unanimous; its verdict on Count 3 was not. On appeal, defendant argues that the trial court's instruction was erroneous and that the error requires the reversal of both convictions.

As the state concedes, under Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the trial court's instruction violated defendant's rights under the Sixth and Fourteenth Amendments to the United States Constitution. Under State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020), that error requires reversal of defendant's conviction on Count 3 because the verdict on that count was not unanimous. Under State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), however, the instructional error does not entitle defendant to reversal of his conviction on Count 1, because the verdict on that count was unanimous.

Conviction on Count 3 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM