State v. Harris

                                  461

 Submitted December 2, 2020; conviction on Count 1 reversed and remanded,
      remanded for resentencing, otherwise affirmed January 6, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  WILLIAM DAVID HARRIS,
                     Defendant-Appellant.
                  Wasco County Circuit Court
                    18CR09450; A170271
                              

  Janet L. Stauffer, Judge.
  George W. Kelly filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
462                                                        State v. Harris

           PER CURIAM
         Defendant appeals a judgment of conviction for
first-degree rape, ORS 163.375 (Count 1), and second-degree
sexual abuse, ORS 163.425 (Count 2). The verdict on Count 1
was not unanimous. In his first assignment of error, defendant contends that the trial court erred in instructing the
jury, over his objection, that it could return nonunanimous
verdicts, and, further, that the instructional error requires
a new trial on Count 1 because of the nonunanimous verdict on that count.1 In his second assignment of error,
defendant argues that the trial court erred in merging the
guilty verdicts on Counts 1 and 2 “for sentencing purposes.”
In response to the first assignment of error, the state correctly concedes that defendant is entitled to a reversal of
his conviction under Ramos v. Louisiana, 

, 

, 

 (2020). We accept the state’s concession and reverse and remand the conviction on Count 1.
That disposition obviates the need to address defendant’s
second assignment of error.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.




    1
      We do not understand defendant to argue that the instructional error
requires a new trial on Count 2, on which the jury returned a unanimous verdict.
In any event, that argument would fail. See State v. Flores Ramos, 

, 

 (2020) (concluding that nonunanimous jury instructions were
harmless where the jury returned unanimous verdicts).