State v. Moore

                                    416

   Submitted January 26; convictions on Counts 2 through 8 reversed and
remanded, remanded for resentencing, otherwise affirmed February 18; petition
                for review denied July 8, 2021 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  ISRAEL MARCEL MOORE,
                     Defendant-Appellant.
                Washington County Circuit Court
                     18CR39673; A171043
                                

   Danielle J. Hunsaker, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
  Convictions on Counts 2 through 8 reversed and
remanded; remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                              417

        PER CURIAM
         Defendant was found guilty by unanimous jury verdict on one count of first-degree unlawful sexual penetration,
ORS 163.411 (Count 1), and by nonunanimous jury verdicts
on seven counts of first-degree sexual abuse, ORS 163.427
(Counts 2 through 8). The trial court merged four of the sexual abuse verdicts into the remaining three, resulting in one
conviction for first-degree unlawful sexual penetration and
three convictions for first-degree sexual abuse. Defendant
argues on appeal that the court erred in declining to give a
requested instruction on less-satisfactory evidence at trial
and in imposing restitution, and that the court plainly erred
in instructing the jury it need not reach unanimous verdicts and in accepting nonunanimous verdicts on the sexual abuse counts. We reject the claimed error regarding the
less-satisfactory evidence instruction. The state concedes
that defendant’s convictions based on nonunanimous verdicts must be reversed in light of Ramos v. Louisiana, 

, 

, 

 (2020). We agree and
accept the concession, and exercise discretion to correct the
errors for the reasons set forth in State v. Ulery, 

,

 (2020). Defendant also argues that his conviction by unanimous verdict on Count 1 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), and State
v. Kincheloe, 

, 

 (2020), in which the
Supreme Court concluded that the erroneous nonunanimous
jury instructions were harmless with respect to unanimous
verdicts. Although our disposition obviates the need for us
to address the question of restitution at this time, we note
that the state concedes that the restitution award also was
erroneous under State v. White, 

, 167-68, 

 (2019).
       Convictions on Counts 2 through 8 reversed and
remanded; remanded for resentencing; otherwise affirmed.