State v. Vasquez-Reyes

                                  393

    Submitted January 27; conviction on Count 5 reversed and remanded,
     remanded for resentencing, otherwise affirmed February 18, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                ANTONIO VASQUEZ-REYES,
                    Defendant-Appellant.
                 Marion County Circuit Court
                    19CR28462; A171308
                              

   Mary Mertens James, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Conviction on Count 5 reversed and remanded; remanded
for resentencing; otherwise affirmed.
394                                            State v. Vasquez-Reyes

          PER CURIAM
         Defendant was convicted by jury verdict of one count
each of second-degree assault constituting domestic violence
(Count 1) and strangulation constituting domestic violence
(Count 2), as well as two counts of fourth-degree assault constituting domestic violence (Counts 3 and 5). The jury was
instructed that its verdicts need not be unanimous, which
was error under the Sixth Amendment to the United States
Constitution. See Ramos v. Louisiana, 

, 

, 

 (2020). The jury was unanimous as
to all of the counts except Count 5, on which it returned a
nonunanimous verdict.
         On appeal, defendant argues that the trial court
plainly erred in giving the nonunanimous jury instruction,
that the error was structural error, and that all of his convictions therefore should be reversed. The state concedes that
defendant is entitled to reversal on the nonunanimous count.
We agree and accept the concession, and exercise discretion
to correct the error for the reasons set forth in State v. Ulery,

, 

 (2020).1 As for defendant’s structural error argument concerning the remaining convictions,
he makes the same arguments that were rejected in State v.
Kincheloe, 

, 

 (2020), and its companion cases. Defendant also raises an evidentiary argument
on appeal, which we reject without written discussion.
       Conviction on Count 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.




    1
      The offense of fourth-degree assault constituting domestic violence is a
Class A misdemeanor, which is punishable up to 364 days imprisonment (ORS
161.615), and, because the possible penalty exceeded six months’ imprisonment,
defendant was entitled to a unanimous jury verdict under the Sixth Amendment.
See State v. Wollam, 

, 

 (2020) (so stating).