STATE v. FISHER (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. George David FISHER, Sr., Defendant-Appellant.

A169092

Decided: May 26, 2021

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent.

In this appeal, we reverse and remand defendant's conviction for harassment, ORS 166.065 (Count 7), which results from the trial court's acceptance of a nonunanimous verdict. See Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) (nonunanimous verdicts for serious offenses not permitted under the Sixth Amendment to the United States Constitution); State v. Ulery, 366 Or. 500, 503-04, 464 P.3d 1123 (2020) (trial court's acceptance of a nonunanimous jury verdict is plain error). The state concedes the error; we accept the concession; and, for the reasons expressed in Ulery, exercise our discretion to correct the error.

However, we reject defendant's structural error challenge to the jury verdicts that were unanimous, Counts 1 through 6. That challenge is foreclosed by State v. Flores Ramos, 367 Or. 292, 294, 334, 478 P.3d 515 (2020) (error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by unanimous guilty verdicts), and State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020) (same).

Conviction on Count 7 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM

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