STATE v. GURROLA (2021)

Defendant appeals a judgment convicting her of unauthorized use of a vehicle, ORS 164.135 (Count 2), and resisting arrest, ORS 162.315 (Count 3). The conviction for unauthorized use of a vehicle was based on a nonunanimous jury verdict; the jury verdict on resisting arrest was unanimous. On appeal, defendant first argues that the trial court erred in denying her motion for judgment of acquittal on the unauthorized use of a vehicle charge; we reject that argument without discussion. Defendant also contends that the court plainly erred in instructing the jury that it could return nonunanimous verdicts, and plainly erred in accepting a nonunanimous verdict on Count 2. See Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020) (nonunanimous verdicts violate the Sixth Amendment to the United States Constitution). The state concedes the error as to the nonunanimous verdict but asserts that the error was harmless. We agree with the state and accept its concession that the acceptance of the nonunanimous verdict constituted plain error. 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). For the reasons expressed in Ulery, we exercise our discretion to correct the error. We reject defendant's challenge to the unanimous verdict on Count 3 for the reasons set forth in State v. Flores Ramos, 367 Or. 292, 294, 334, 478 P.3d 515 (2020).

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

PER CURIAM