STATE v. BUSH (2021)

Defendant was convicted of second-degree assault, ORS 163.175 (Count 1), and attempted second-degree theft, ORS 161.405(2)(e); ORS 164.045 (Count 2), by nonunanimous verdicts. He was convicted of interference with making a report, ORS 165.572 (Count 3), and second-degree criminal trespass, ORS 164.245 (Count 4) by unanimous verdicts. On appeal, he assigns error to the trial court's acceptance of the two nonunanimous verdicts; he also assigns error to the court's admission of certain hospital records, arguing that they were inadmissible hearsay.

The state concedes that the court's acceptance of the nonunanimous verdict on Count 1 constitutes plain error. We accept the state's concession and, for the reasons set forth in State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020), we exercise our discretion to correct the error. We also conclude, for the reasons set forth in State v. Heine, 310 Or. App. 14, 21, 484 P.3d 391 (2021), that the trial court's acceptance of a nonunanimous verdict on Count 2—a Class B misdemeanor—constitutes plain error. We likewise exercise our discretion to correct that error, again for the reasons expressed in Ulery.

Finally, the parties agree that the hospital records at issue in defendant's first assignment of error relate primarily to Count 1 and perhaps to Count 2. Because the record as to the admission of those documents will likely develop differently on remand, our disposition of Counts 1 and 2 obviates the need to address defendant's first assignment of error.

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

PER CURIAM