State v. Wilson

                                  577

Submitted January 29; convictions on Counts 3 and 4 reversed and remanded,
       remanded for resentencing, otherwise affirmed March 3, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             TEVIS DANIEL STEVEN WILSON,
                   Defendant-Appellant.
              Washington County Circuit Court
                   18CR33906; A170073
                               

  Janelle F. Wipper, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge, and
Aoyagi, Judge.
  PER CURIAM
  Convictions on Counts 3 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
578                                                         State v. Wilson

           PER CURIAM
         In this criminal appeal, defendant was found guilty
by a nonunanimous jury verdict of felony strangulation constituting domestic violence, ORS 163.187(4) (Count 3), and
felony fourth-degree assault constituting domestic violence,
ORS 163.160(3) (Count 4). Defendant was also found guilty
by a unanimous jury verdict of interference with making
a report, ORS 165.572 (Count 5).1 The trial court imposed
$650 in court-appointed attorney fees. In defendant’s first
assignment of error, he asserts that it was plain error for the
trial court to fail to instruct the jury that it must concur on
which factual occurrence constituted fourth-degree assault
(Count 4). In defendant’s second, third, and fourth assignments of error, he asserts that it was plain error to instruct
the jury that it need not reach a unanimous verdict and to
accept nonunanimous guilty verdicts for Counts 3 and 4. See
Ramos v. Louisiana, 

, 

, 

 (2020) (holding that it was error, under the Sixth
Amendment to the United States Constitution, to instruct
the jury that it could return a nonunanimous verdict). In
defendant’s fifth assignment of error, he asserts that it was
error for the court to impose $650 in attorney fees because
the record lacked sufficient evidence that he had the ability
to pay the fees. ORS 151.505(3); ORS 161.665(4).
        To begin, it was plain error for the trial court to
instruct the jury that it could return a nonunanimous verdict and to accept nonunanimous guilty verdicts for Counts
3 and 4. State v. Ulery, 

, 

 (2020).
For the reasons that the Supreme Court explained in Ulery,
we conclude that it is appropriate to exercise our discretion
to correct the error. 

. Consequently, we reverse
and remand Counts 3 and 4.2 That obviates the need for us
to address defendant’s concurrence-instruction argument
as to Count 4. In addition, because we are remanding for

    1
      Defendant was found not guilty on Counts 1 and 2.
    2
      We understand defendant to challenge nonunanimous verdicts concerning
Counts 3 and 4. However, to the extent that defendant argues that it was structural error for the court to instruct the jury that it could return a nonunanimous
verdict on Count 5, for which the jury was unanimous in finding defendant guilty,
we reject that argument for the reasons that the Supreme Court explained in
State v. Kincheloe, 

, 

 (2020).
Cite as 

 (2021)                          579

resentencing, we need not address defendant’s argument
concerning the imposition of court-appointed attorney fees.
       Convictions on Counts 3 and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.