304 ORAPP 866 - State v. LaRue

                                  866

   Argued and submitted September 30, 2019; in 16CR73753, reversed and
             remanded; in 17CR26529, affirmed June 17, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 DAVID JACKSON LaRUE,
                     aka David J. LaRue,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                   16CR73753, 17CR26529;
                 A166941 (Control), A166942

464 P3d 1141



   Jerry B. Hodson, Judge.
   Zachary Lovett Mazer, Deputy Public Defender, argued
the cause for appellant. Also on the opening brief was Ernest
G. Lannet, Chief Defender, Office of Public Defense Services.
David Jackson LaRue filed the supplemental brief pro se.
   Philip Thoennes, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   In 16CR73753, reversed and remanded; in 17CR26529,
affirmed.
Cite as

304 Or App 866

 (2020)                            867

        PER CURIAM
         In the first of these consolidated cases, case number
16CR73753, defendant was found guilty of first-degree rape
constituting domestic violence, first-degree sexual abuse constituting domestic violence, second-degree sexual abuse constituting domestic violence, and fourth-degree assault constituting domestic violence by nonunanimous jury verdicts.
ORS 163.375; ORS 163.427; ORS 163.425; ORS 163.160. In a
second case, case number 17CR26529, he appeals a conviction for tampering with a witness, ORS 162.285, but raises
no assignments of error on appeal concerning that conviction. Defendant argues that the trial court’s acceptance of
nonunanimous verdicts in the first case constitutes plain
error under the Sixth and Fourteenth Amendments to the
United States Constitution. In Ramos v. Louisiana,

590 US ___

140 S Ct 1390, 1397

206 L Ed 2d 583

 (2020), the
Court concluded that nonunanimous jury verdicts violated
the Sixth Amendment, and that the “Sixth Amendment’s
unanimity requirement” is “incorporated against the States
under the Fourteenth Amendment.” In State v. Ulery,

366 Or 500, 504

464 P3d 1123

 (2020), the Oregon Supreme Court
concluded that a trial court’s acceptance of a nonunanimous
verdict constituted plain error and exercised discretion to
correct that error in light of the gravity of the error and
because failure to raise the issue in the trial court did not
weigh heavily against correction as the trial court would not
have been able to correct the error under controlling law.
         The state concedes that the trial court’s acceptance
of nonunanimous verdicts in the first case constitutes plain
error. For the reasons set forth in Ulery, we exercise our
discretion to correct the error. Our disposition obviates the
need to address the merits of defendant’s remaining argument, which involves an unpreserved challenge to a ruling
admitting an exhibit, or defendant’s pro se supplemental
assignments of error.
        In 16CR73753, reversed and remanded; in 17CR26529,
affirmed.