State v. Boggs

                                  164

  Submitted June 29, 2020; conviction on Count 2 reversed and remanded,
      remanded for resentencing, otherwise affirmed March 17, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                ASHLEY ANNETTE BOGGS,
                     Defendant-Appellant.
                Gilliam County Circuit Court
                     17CR69412; A169278
                              

  Janet L. Stauffer, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
   Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                            165

         PER CURIAM
         Defendant was found guilty by jury verdict on two
counts of first-degree theft. A jury poll indicated that the
verdict was unanimous for Count 1 but not Count 2. On
appeal, defendant raises the following six assignments of
error: defendant claims that the trial court erred by (1) and
(2) refusing to provide jury instructions concerning mens rea
regarding the value of the property stolen; (3) providing jury
instructions allowing nonunanimous verdicts; (4) entering a
judgment of conviction based on the unanimous verdict for
Count 1; (5) entering a judgment of conviction based on the
nonunanimous verdict for Count 2; and (6) imposing a $500
felony fine on Count 1 without determining whether defendant was able to pay it.
         Regarding defendant’s first two assignments of
error, we reject those arguments without further discussion
for the reasons set forth in State v. Stowell, 

,

 (2020).
         Defendant’s arguments in her third and fourth
assignments are foreclosed by State v. Flores Ramos, 

, 

 (2020). That is, after the United States
Supreme Court ruled, in Ramos v. Louisiana, 

, 

, 

 (2020), that nonunanimous jury
verdicts for serious crimes violate the Sixth Amendment,
the Oregon Supreme Court explained in Flores Ramos that
nonunanimous jury instruction was not a structural error
that categorically requires reversal in every case. 

. When, as here, the jury’s verdict was unanimous despite
the nonunanimous instruction, such erroneous instruction
was “harmless beyond a reasonable doubt” with respect to
the unanimous verdicts. 

.
         As to her fifth assignment of error, however, defendant is correct. It was erroneous—as the state concedes—to
enter a judgment of conviction based on the nonunanimous
verdict for Count 2. We accept that concession and therefore
reverse and remand the conviction on Count 2.
         Because we are remanding for resentencing, we do
not reach defendant’s sixth assignment of error.
         Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.