STATE v. JOHNS (2021)

Defendant was convicted of first-degree sexual abuse, ORS 163.427, as alleged in Count 2, by unanimous vote of the jury. He was convicted of all other counts by less than unanimous vote of the jury. The trial court merged Count 3 with Count 2 and Count 4 with Count 1 at the time of sentencing. On appeal, defendant raises six assignments of error—three in his opening brief and three in his supplemental brief.

We reject defendant's first, second, and third assignments of error without discussion. We address the fourth, fifth, and sixth assignments of error below.

Defendant's assignments of error in his supplemental brief each relate to the United States Supreme Court's decision in Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). In his fourth assignment, defendant assigns error to the trial court's instruction to the jury that it could convict defendant by a nonunanimous verdict. In his fifth assignment, he assigns error to the court's acceptance of nonunanimous verdicts on Count 1 and Counts 3 through 13. In his sixth assignment, he assigns error to the court's merger of Count 3, which was based on a nonunanimous verdict, with Count 2, which was based on a unanimous verdict. He acknowledges that he did not preserve any of those assignments of error but argues that we should review the trial court's rulings as plain error and exercise our discretion to correct them.

Beginning with the fifth assignment, we agree with defendant that the trial court's acceptance of nonunanimous verdicts on Count 1 and Counts 3 through 13 was plainly erroneous. State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020). For the reasons set forth in Ulery, it is appropriate for us to exercise our discretion to correct that error, and we reverse and remand on those counts.

Turning to defendant's merger argument in his sixth assignment of error, he asserts that because the conduct alleged in support of Count 2 was part of the same course of conduct as the conduct alleged in support of Count 3, the jury's “unanimous verdict on count 2 is suspect.” And, for that reason, we understand defendant to argue that we should also reverse and remand defendant's conviction on Count 2. The issue is better framed as whether the nonunanimous verdict on Count 3 calls into question the unanimous verdict on Count 2. We conclude that it does not.

Although Counts 2 and 3 were part of the same course of conduct, and although they were both alleged as first-degree sexual abuse, the state alleged distinct conduct in each count. In Count 2, the state alleged that defendant subjected the victim, J, to sexual contact by touching J. In Count 3, the state alleged that defendant subjected J to sexual contact by causing J to touch defendant. Those circumstances would have made it appropriate to merge Counts 2 and 3 (had Count 3 been unanimous) pursuant to ORS 161.067(3) due to lack of “sufficient pause” between the offenses, but we see no reason to reverse Count 2 given that the conduct that the state alleged was distinct from the conduct that it alleged in Count 3, and given that the jury was unanimous as to its verdict on Count 2.

Finally, with regard to defendant's fourth assignment, we agree that it was plainly erroneous for the trial court to instruct the jury that it could return a nonunanimous verdict. State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020). However, for the reasons explained in State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), we decline to exercise our discretion to correct that error as to Count 2 because the error was harmless beyond a reasonable doubt. As noted, the jury's verdict was unanimous as to that count. Accordingly, we affirm defendant's conviction on Count 2.

Convictions on Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 reversed and remanded; remanded for resentencing on Count 2; otherwise affirmed.

MOONEY, J.