STATE v. SOSA (2021)

Defendant was convicted by nonunanimous jury verdict of luring a minor, ORS 167.057 (Count 1), and attempted second-degree sexual abuse, ORS 163.425 (Count 2). He was convicted by unanimous jury verdict of unlawful possession of a firearm, ORS 166.250 (Count 3). He argues on appeal that the trial court erred in instructing the jury that it could reach nonunanimous verdicts in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), which held that nonunanimous jury verdicts violate the Sixth Amendment. The state concedes that the nonunanimous verdicts must be reversed. We agree and accept that concession.

Defendant's challenge to the jury's unanimous verdict on the unlawful possession of a firearm count is foreclosed by State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020), in which the court concluded that nonunanimous jury instruction was not a structural error that categorically requires reversal in every case. When, as here, the jury's verdict was unanimous despite the nonunanimous instruction, such erroneous instruction was “harmless beyond a reasonable doubt” with respect to the unanimous verdict. Id. at 329, 478 P.3d 515.

Convictions on Counts 1 and 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM