STATE v. SARVER (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Dennis Gene SARVER, Defendant-Appellant.

A171700

Decided: June 09, 2021

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

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.

Defendant was found guilty by nonunanimous jury verdict of first-degree manslaughter (Count 2), ORS 163.118. Defendant was found guilty by unanimous jury verdict of second-degree manslaughter (Count 3), ORS 163.125, and unlawful use of a weapon (Count 4), ORS 166.220. Defendant argues that the trial court erred in instructing the jury, over his objection, that it could return nonunanimous verdicts, and in accepting a nonunanimous verdict on Count 2. The state concedes that the trial court's acceptance of a nonunanimous verdict on Count 2 constitutes error that must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept the concession.

With respect to the convictions based on unanimous verdicts, we reject defendant's structural-error argument for the reasons stated in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020).

Conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM

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