State v. Wollam

                                284

       Submitted July 16, reversed and remanded August 26, 2020


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             THOMAS CHARLES WOLLAM,
                  Defendant-Appellant.
             Washington County Circuit Court
                  16CR31207; A169467
                            

  Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Reversed and remanded.
Cite as 

 (2020)                            285

        PER CURIAM

         Defendant appeals a judgment of conviction for
(1) third-degree assault; (2) reckless driving; and (3) recklessly endangering another person. Each verdict was
nonunanimous and entered over defendant’s objection on
that point. Defendant first contends that, as to each conviction, the evidence is not sufficient to support a finding that
he had the requisite culpable mental state. Thus, defendant
argues, the trial court erred or plainly erred by not acquitting him on each count. We reject his contention regarding
sufficiency of the evidence because it is not preserved and,
on this record, we see no plain error.

         Defendant also assigns error to the trial court’s
acceptance, over his objection, of nonunanimous verdicts
on each count. As the state correctly concedes, Ramos
v. Louisiana, 

, 

, 

 (2020), which held that the Sixth and Fourteenth
Amendments to the United States Constitution require
unanimous jury verdicts to convict a defendant who exercises his Sixth Amendment right to trial by jury, entitles
defendant to reversal of his convictions on that score. We
note that, although two of defendant’s convictions were for
Class A misdemeanors (the convictions for reckless driving, ORS 811.140, and recklessly endangering another person, ORS 163.195), the Sixth Amendment gave defendant
a right to a jury trial on those charges. That is because a
Class A misdemeanor may be punished by up to 364 days’
incarceration, ORS 161.615, and the Sixth Amendment jury
trial right applies “where the possible penalty exceeds six
months’ imprisonment.” Baldwin v. New York, 

, 

, 

 (1970); Ramos, 590 US
at ___, 

 n 7 (observing that, “[u]nder existing precedent and consistent with a common law tradition
not at issue here, a defendant may be tried for certain ‘petty
offenses’ without a jury” (quoting Cheff v. Schnackenberg,

, 

, 

 (1966))).
Because defendant had a Sixth Amendment right to a jury
trial on those charges, he had the included right to unanimity recognized in Ramos.
286                                       State v. Wollam

         In his remaining assignments of error, defendant
contends that the trial court made evidentiary errors, an
instructional error, and erred in how it restricted defendant’s closing argument. Because the record suggests that
those alleged errors—if errors—are ones that will not necessarily recur on remand, we decline to reach them.
        Reversed and remanded.