STATE v. PUGMIRE (2021)

Defendant was convicted by jury on two counts of conspiracy to promote prostitution and four counts of promoting prostitution. The jury was unanimous as to one count of promoting prostitution (Count 29) and one count of conspiracy to promote prostitution (Count 32). The jury was not unanimous on three counts of promoting prostitution (Counts 30, 31, and 33) and one count of conspiracy to promote prostitution (Count 28). Defendant argues on appeal that the court erred in instructing the jury that it could return nonunanimous verdicts and in accepting a nonunanimous verdict on Counts 28, 30, 31, and 33. He also argues that the court erred in failing to merge certain of the convictions. The state concedes that defendant's convictions on Counts 28, 30, 31, and 33, 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. Although defendant did not preserve his arguments concerning the nonunanimous verdicts, we exercise discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020). 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), and State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts. Given our disposition, we need not address defendant's argument concerning merger.

Convictions on Counts 28, 30, 31, and 33 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM