STATE v. TODD (2021)

Defendant was found guilty by a jury of six offenses. For three of the counts, the jury returned nonunanimous guilty verdicts: unlawful use of a weapon, ORS 166.220 (Count 1); and two counts of second-degree use of a stun gun, tear gas or mace, ORS 163.212 (Counts 3 and 4). For the other three counts, the jury returned unanimous guilty verdicts: menacing, ORS 163.190 (Count 2); second-degree use of a stun gun, tear gas or mace, ORS 163.212 (Count 5); and reckless driving, ORS 811.140 (Count 6). The trial court merged the guilty verdict for Count 2 into Count 1.

On appeal, defendant argues that the trial court plainly erred by accepting the jury's nonunanimous guilty verdicts. Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The state concedes the error. We agree, accept the concession, and exercise our discretion to correct the plain error. State v. Ulery, 366 Or. 500, 503, 464 P.3d 1123 (2020). Defendant's challenges to the unanimous guilty verdicts for Counts 2, 5, and 6 are foreclosed by State v. Kincheloe, 367 Or. 335, 478 P.3d 507 (2020), and we therefore reject them.

Convictions on Counts 1, 3, and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM