STATE v. SULLIVANT (2021)

Defendant was convicted by a jury of one count of aggravated harassment, ORS 166.070, a felony; two counts of attempted aggravated harassment, ORS 161.405(2)(d); and one count of disorderly conduct, ORS 166.025. The last three offenses are misdemeanors. Each conviction was by a nonunanimous verdict. On appeal, he contends that the trial court plainly erred in accepting the nonunanimous verdicts on all counts and that his convictions should be reversed and remanded for that reason.

While this appeal has been pending, the state moved to dismiss on the ground that defendant had absconded from justice. See ORAP 8.05(3). We have since been notified that defendant is in custody; therefore, he is no longer on “abscond status” within the meaning of ORAP 8.05(3). State v. Lazarides, 358 Or. 728, 736, 369 P.3d 1174 (2016). For that reason, we deny the motion to dismiss.

Proceeding to the merits of the appeal, under current case law, the trial court plainly erred. State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020); State v. Bush, 311 Or. App. 242, 243, 486 P.3d 49 (2021); State v. Heine, 310 Or. App. 14, 21, 484 P.3d 391 (2021). For the reasons stated in Ulery and Bush, we exercise our discretion to correct the errors. See Ulery, 366 Or. at 504, 464 P.3d 1123; Bush, 311 Or. App. at 243, 486 P.3d 49.

Motion to dismiss denied; reversed and remanded.

PER CURIAM