State v. Merrill

                                        68

 On appellant’s petition for reconsideration filed April 1, 2020; reconsideration
   allowed, former disposition withdrawn, opinion (

, 

) modified and adhered to as modified, conviction on Count 2 reversed and
remanded, remanded for resentencing, otherwise affirmed February 3; petition
                 for review denied July 15, 2021 (

)


                      STATE OF OREGON
                      Plaintiff-Respondent,
                                v.
                 NICHOLAS PATRICK MERRILL,
                      Defendant-Appellant.
                 Multnomah County Circuit Court
                      16CR54578; A165105
                                   

    Defendant appealed from a judgment of conviction for felony fourth-degree
assault constituting domestic violence, ORS 163.160 (Count 1), and felony
strangulation constituting domestic violence, ORS 163.187 (Count 2). The jury
returned a unanimous guilty verdict on Count 1 and a nonunanimous verdict
on Count 2. On appeal, defendant’s first and second assignments of error both
concerned the interplay between the strangulation and fourth-degree assault
statutes. The Court of Appeals original opinion, State v. Merrill, 

,

 (2020), addressed defendant’s arguments as to merger of his convictions on Counts 1 and 2, rejecting his first two assignments of error. In a petition
for reconsideration, defendant also raised supplemental assignments of error
challenging his convictions by nonunanimous verdicts for Count 2, to which the
state conceded. Held: Defendant’s challenge to the trial court’s nonunanimous
instruction on Count 1 is foreclosed by State v. Flores Ramos, 

,

 (2020). The state’s concession to the supplemental error for Count 2 is
accepted per State v. Ulery, 

, 

 (2020). Because defendant
faces the possibility of a retrial on Count 2, and if convicted, the merger issue
could arise on remand, the former opinion is not withdrawn.
     Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified; conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.




    Kenneth R. Walker, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, for petition.
  Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
Cite as 

 (2021)                           69

  JAMES, J.
   Reconsideration allowed; former disposition withdrawn;
opinion modified and adhered to as modified; conviction on
Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.
70                                           State v. Merrill

        JAMES, J.

         Defendant appealed from a judgment of conviction
for felony fourth-degree assault constituting domestic violence, ORS 163.160, and felony strangulation constituting
domestic violence, ORS 163.187. On appeal, defendant’s first
and second assignments of error both concerned the interplay between the strangulation and fourth-degree assault
statutes. In State v. Merrill, 

, 

(2020), we rejected those assignments of error, but neglected
to rule on the assignments of error raised in defendant’s
supplemental brief, wherein defendant challenged his convictions by nonunanimous verdicts.

         On April 1, 2020, defendant filed a petition for
reconsideration, asking us to address his supplemental
assignments of error. We held our decision pending resolution of Ramos v. Louisiana, 

, 

, 

 (2020), and cases then taken under advisement
by the Oregon Supreme Court that presented Ramos issues.

         In this case, the trial court instructed the jury,
“This being a criminal case, ten or more jurors must agree
on your verdict.” The jury returned a unanimous guilty verdict on Count 1 and a nonunanimous verdict on Count 2.
Defendant did not request a unanimous jury instruction
and did not object to the court’s receipt of the nonunanimous verdict on Count 2. On appeal, he contends that issuing a nonunanimous instruction and the acceptance of a
nonunanimous verdict constitute structural errors that
this court must correct, or alternatively, plain error that
we should exercise our discretion to correct. The state concedes that defendant’s nonunanimous conviction on Count
2 is error, and that this court should exercise its discretion
to correct that error despite the lack of objection. We accept
the concession and exercise our discretion to reach the merits as plain error. State v. Ulery, 

, 

 (2020) (“[D]efendant has a significant interest in a new
trial before a jury properly instructed that it must be unanimous to convict. And, though the state has a competing
interest in avoiding the expense and difficulty associated
with a retrial, the balance weighs in defendant’s favor.”).
Cite as 

 (2021)                                 71

Accordingly, we modify our original opinion to reverse
defendant’s conviction on Count 2.
        Defendant’s challenge to the trial court’s nonunanimous instruction on Count 1, where the jury ultimately
returned a unanimous verdict, is foreclosed by State v.
Flores Ramos, 

, 

 (2020).
         Our original opinion addressed defendant’s arguments as to merger of his convictions on Counts 1 and 2.
Because defendant faces the possibility of a retrial on Count 2,
and if convicted, the merger issue could arise on remand,
we do not withdraw the opinion. Even when a disposition
obviates the need to address an assignment of error, we
may nevertheless address questions of law that may still
be at issue after the case is remanded. See, e.g., Westwood
Construction Co. v. Hallmark Inns, 

,

, rev den, 

 (2002) (addressing ruling
concerning the availability of certain type of attorney fees
under ORS 87.060 as likely to arise on remand); State v.
McFeron, 

, 

 (2000) (addressing propriety of jury instruction concerning ways in which
state may prove intoxication because it was likely to arise
on remand); OR-OSHA v. Roseburg Lumber Co., 

, 

 (1997) (addressing agency’s construction of legal standard set forth in administrative rule
because it was likely to arise on remand).
         Reconsideration allowed; former disposition withdrawn; opinion modified and adhered to as modified; conviction on Count 2 reversed and remanded; remanded for
resentencing; otherwise affirmed.