STATE v. TURNER (2021)

Defendant appeals a judgment of conviction for three counts of first-degree sodomy (Counts 1 to 3); three counts of first-degree sexual penetration (Counts 4 to 6); and three counts of first-degree sexual abuse (Counts 7 to 9). Although the jury was instructed that it need not reach unanimity to find defendant guilty, it returned unanimous verdicts on all but Counts 2 and 3. On appeal, defendant contends that the trial court: (1) abused its discretion under OEC 403 in admitting certain evidence of other sexual misconduct by defendant; (2) erred by instructing the jury that it could convict by a less-than-unanimous verdict; and (3) erred by accepting the nonunanimous verdicts on Counts 2 and 3.

When considered in conjunction with the record and similar cases, including State v. Terry, 309 Or. App. 459, 482 P.3d 105 (2021), and State v. Moles, 295 Or. App. 606, 435 P.3d 782, rev. den., 365 Or. 194, 451 P.3d 242 (2019), rev'd on other grounds, 366 Or. 549, 466 P.3d 61 (2020), the trial court's challenged OEC 403 ruling was not an abuse of discretion.

As for nonunanimity, although the trial court erred in instructing the jury that it could convict by nonunanimous verdicts, that error requires reversal only of the convictions on Counts 2 and 3, the sole counts on which the jury was not unanimous. State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020); State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020). The error does not require reversal of the convictions on which the verdicts were unanimous. Id.

Convictions on Counts 2 and 3 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM