STATE v. BEDINGER (2021)

A jury unanimously found defendant guilty of harassment (Count 5) and nonunanimously found defendant guilty of menacing constituting domestic violence (Count 2) and fourth-degree assault constituting domestic violence (Count 4). He was acquitted on Counts 1 and 3. On appeal, defendant contends that the court plainly erred in instructing the jury that it could return nonunanimous verdicts, and plainly erred in accepting nonunanimous verdicts on Counts 2 and 4. 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 in instructing the jury but asserts that the error was harmless as to the unanimous verdict. We agree with the state and accept its concession that the acceptance of the nonunanimous verdicts 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 for the reasons set forth in State v. Flores Ramos, 367 Or. 292, 294, 334, 478 P.3d 515 (2020).

Convictions on Counts 2 and 4 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM