Count 1 reversed and remanded · Decided 2021-02-10
340
Submitted March 31, 2020; Count 1 reversed and remanded, remanded for
resentencing, otherwise affirmed February 10, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW ALAN KRIEGER,
Defendant-Appellant.
Lane County Circuit Court
18CR03821; A168642
Valeri L. Love, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.
Cite as
309 Or App 340
(2021) 341
PER CURIAM
Defendant was convicted by jury on one count of
delivery of heroin (Count 1) and one count of possession of
heroin (Count 2). The jury was unanimous on Count 2, but
not on Count 1. Defendant argues on appeal that the trial
court erred in denying his motion to suppress evidence, in
declining to give his proffered unanimous jury instruction
and instructing the jury that it could return nonunanimous
verdicts, and in accepting a nonunanimous verdict. We reject
defendant’s argument concerning the motion to suppress
without discussion. The state concedes that defendant’s conviction on Count 1 based on a nonunanimous verdict must
be reversed in light of Ramos v. Louisiana,
590 US ___
,
140
S Ct 1390
,
206 L Ed 2d 583
(2020). We agree and accept that
concession. Defendant argues that his remaining conviction
also should be reversed based on the erroneous nonunanimous verdict instruction. We reject that argument for the
reasons set forth in State v. Flores Ramos,
(2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with
respect to unanimous verdicts.
Count 1 reversed and remanded; remanded for
resentencing; otherwise affirmed.
