STATE v. DAVIS (2021)

Defendant was convicted by nonunanimous jury verdicts of fourth-degree assault constituting domestic violence (Count 1) and attempted second-degree assault (Count 4). He was also convicted by unanimous jury verdicts of second-degree assault constituting domestic violence (Count 2), unlawful use of a weapon constituting domestic violence (Count 3), and unlawful use of a weapon (Count 5). Defendant appeals the judgment of conviction and raises four assignments of error. We reject his fourth assignment without discussion. In his first two assignments, defendant contends that the trial court erred under the Sixth Amendment to the United States Constitution by instructing the jury that it could render nonunanimous verdicts and by accepting nonunanimous verdicts.¹ Defendant asserts that the trial court's error was structural and requires reversal of all of his convictions.

In response, the state concedes that the trial court erred by instructing the jury that it could return a nonunanimous verdict and by accepting nonunanimous verdicts on Counts 1 and 4. The state argues that instructing the jury that it could return a nonunanimous verdict did not constitute structural error and is harmless as to Counts 2, 3, and 5.

We agree with the state and accept its concession as to Counts 1 and 4. The nonunanimous jury instruction violated the Sixth Amendment. Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 1396, 206 L. Ed. 2d 583 (2020). The Oregon Supreme Court has held, however, that providing a nonunanimous jury instruction is not a structural error that requires reversal in every case. State v. Flores Ramos, 367 Or. 292, 319, 478 P.3d 515 (2020). Here, the verdicts on Counts 2, 3, and 5 were unanimous, and, therefore, the error was harmless as to those counts. Id. at 329, 478 P.3d 515.

Convictions on Counts 1 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Our disposition of defendant's first and second assignments of error obviates the need to reach his unpreserved third assignment in which he contends that, by imposing sentence when some of the verdicts were nonunanimous, the trial court violated Article I, section 16, of the Oregon Constitution.

PER CURIAM