305 Or. App. 853 - State v. Catron

                                 853

   Submitted December 10, 2019, reversed and remanded August 12, 2020


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                   LOIS JUNE CATRON,
                    Defendant-Appellant.
                Malheur County Circuit Court
                    17CR71598; A167757

471 P3d 810



  Lung S. Hung, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
  Reversed and remanded.
854                                           State v. Catron

        PER CURIAM
         Defendant was convicted of theft of services, ORS
164.125, by nonunanimous jury verdict. On appeal, defendant argues that the trial court erred by denying her motion
for judgment of acquittal on that count, and that the trial
court’s acceptance of nonunanimous verdicts constitutes
plain error under the Sixth Amendment to the United States
Constitution. In Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020), the United States Supreme
Court concluded that nonunanimous jury verdicts violate
the Sixth 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
constitutes plain error. Further, the Supreme Court exercised its discretion to correct that plain error because of its
gravity and because failure to raise the issue in the trial
court did not weigh heavily against correction. Even if the
issue had been raised, the trial court would not have been
able to correct the error under Oregon law as it existed at
that time.
         First, we reject without discussion defendant’s
assignment of error related to her motion for a judgment of
acquittal. Second, the state concedes, and we agree, that the
trial court’s acceptance of nonunanimous verdicts on each
of the convictions in this case constitutes plain error. For
the reasons set forth in Ulery, we exercise our discretion to
correct the error in this case.
        Reversed and remanded.