STATE v. BERUMEN CARLOS (2021)

In this consolidated appeal, defendant appeals the judgments in four cases; however, his assignments of error relate only to Case No. 18CR42669.¹ In that case, defendant was convicted after a jury trial of various felonies, including two counts of attempted first-degree assault with a firearm, ORS 163.185 (Counts 1 and 2). He raises six assignments of error on appeal. We write only to address defendant's first three assignments of error and reject the others without discussion.

In his first three assignments of error, defendant contends that the trial court plainly erred in instructing the jury that it could return a nonunanimous verdict and in entering a conviction on Counts 1 and 2 based on the jury's nonunanimous verdict. The state concedes that defendant's convictions on Counts 1 and 2 must be reversed in light of Ramos v. Louisiana, ––– 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 to defendant's argument that the court's error in instructing the jury was structural error that requires reversal of his other 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). Accordingly, we reverse and remand defendant's convictions on Counts 1 and 2, remand for resentencing, and otherwise affirm.

In Case No. 18CR42669, convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case Nos. 17CR51367, 19CR15516, and 18CR06154, affirmed.

FOOTNOTES

1.   We, therefore, do not discuss the others.

PER CURIAM