STATE v. BLEDSOE (2021)

Defendant was convicted after a jury trial for first-degree manslaughter (Count 1), second-degree manslaughter (Count 2), failure to perform duties of a driver–death (Count 3), driving under the influence of intoxicants (Count 4), failure to perform duties of a driver–property damage (Count 6), two counts of recklessly endangering another person (Counts 7 and 8), and reckless driving (Count 9).¹ The jury returned a 10-2 guilty verdict on Count 1; on all other counts, the jury's guilty verdict was unanimous. The trial court merged the guilty verdict on Count 2 with the conviction on Count 1.

On appeal, defendant contends that the trial court erred in instructing the jury that it could convict based on nonunanimous verdicts, in accepting the jury's nonunanimous guilty verdict on Count 1, and in accepting the jury's unanimous verdicts on the remaining charges. As the state properly concedes, the trial court erred in giving a jury instruction that allowed for conviction based on a nonunanimous verdict and in accepting the jury's nonunanimous verdict on Count 1, requiring reversal and remand of that count. Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). However, defendant is not entitled to reversal of the remaining counts, for which the jury returned unanimous verdicts. Defendant's arguments to the contrary—that a nonunanimous verdict instruction is structural error and not harmless beyond a reasonable doubt—were rejected by the Supreme Court in State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), and State v. Ciraulo, 367 Or. 350, 478 P.3d 502 (2020), cert. den., ––– U.S. ––––, 141 S. Ct. 2836, 210 L.Ed.2d 950 (2021). Consequently, we reverse and remand defendant's conviction on Count 1 and remand the case for resentencing, which includes entering a new disposition on the merged count, Count 2. See State v. Cockrell, 170 Or. App. 29, 31, 10 P.3d 960 (2000) (reversal of conviction and affirmance of another that had been merged with it “has the effect of ‘unmerging’ those crimes,” freeing the trial court to enter judgment and sentence the defendant on the merged count).

Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   The trial court granted defendant's motion for judgment of acquittal on the charge of reckless endangerment of highway workers (Count 5).

PER CURIAM