STATE v. MOORE (2021)

Defendant was found guilty by unanimous jury verdict on one count of first-degree unlawful sexual penetration, ORS 163.411 (Count 1), and by nonunanimous jury verdicts on seven counts of first-degree sexual abuse, ORS 163.427 (Counts 2 through 8). The trial court merged four of the sexual abuse verdicts into the remaining three, resulting in one conviction for first-degree unlawful sexual penetration and three convictions for first-degree sexual abuse. Defendant argues on appeal that the court erred in declining to give a requested instruction on less-satisfactory evidence at trial and in imposing restitution, and that the court plainly erred in instructing the jury it need not reach unanimous verdicts and in accepting nonunanimous verdicts on the sexual abuse counts. We reject the claimed error regarding the less-satisfactory evidence instruction. The state concedes that defendant's convictions 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 the concession, and exercise discretion to correct the errors for the reasons set forth in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020). Defendant also argues that his conviction by unanimous verdict on Count 1 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 Supreme Court concluded that the erroneous nonunanimous jury instructions were harmless with respect to unanimous verdicts. Although our disposition obviates the need for us to address the question of restitution at this time, we note that the state concedes that the restitution award also was erroneous under State v. White, 299 Or. App. 165, 167-68, 449 P.3d 924 (2019).

Convictions on Counts 2 through 8 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM