STATE v. LUTON (2021)

In one of these consolidated cases, defendant appeals from a judgment convicting him of first-degree kidnapping (Count1), first-degree robbery (Count 2), unlawful use of a weapon (Count 3), second-degree robbery (Count 4), and third-degree assault (Count 5).¹ The jury returned a nonunanimous verdict on Count 1 and unanimous verdicts on the remaining counts. On appeal, defendant argues that the trial court erred in denying his motion for a judgment of acquittal on Count 1, erred in instructing the jury that it could return a nonunanimous verdict, and that it plainly erred in accepting a nonunanimous verdict on Count 1. We reject defendant's argument on the motion for judgment of acquittal without further discussion.

The state concedes that the trial court's acceptance of a nonunanimous verdict on Count 1 constitutes plain error and that that conviction 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).

With respect to the convictions based on unanimous verdicts, we reject defendant's structural-error argument for the reasons stated 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 Case No. 18CR69878, conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 16CR74919, affirmed.

FOOTNOTES

1.   In the other consolidated case, defendant appeals from a judgment revoking his conditional release under ORS 420A.206, but he does not raise any challenges to that judgment.

PER CURIAM