STATE v. AKINS (2021)

Defendant was convicted of seven counts of first-degree unlawful sexual penetration and seven counts of first-degree sexual abuse. On one of those convictions—Count 3—the jury returned a nonunanimous verdict. Defendant argues that the trial court plainly erred when it entered a judgment of conviction on Count 3. The state concedes that the court plainly erred. That is, under Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), the court's instruction and acceptance of the nonunanimous verdicts was error. Further, in State v. Ulery, 366 Or. 500, 503-04, 464 P.3d 1123 (2020), the Oregon Supreme Court concluded that a trial court's acceptance of a nonunanimous verdict constituted plain error and exercised its discretion to correct that error. Consequently, we accept the state's concession and agree that the trial court plainly erred and, for the reasons set forth in Ulery (gravity of the error and the trial court would not have been able to correct the error had the error been raised), we exercise our discretion to correct the error.

Defendant raises an additional assignment of error in supplemental briefing. We reject it without written discussion.

Conviction on Count 3 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM