State v. Mutara

                                    226

   Submitted May 28, 2020; conviction on Count 5 reversed and remanded,
 remanded for resentencing, otherwise affirmed March 24; petition for review
                     denied July 29, 2021 (

)


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
       ZIRIMWABAGABO TSHIASUMA MUTARA,
                aka Zirimwabaga Mutara,
           aka Zirimwabaga Tshasuma Mutara,
                   Defendant-Appellant.
            Multnomah County Circuit Court
                   17CR46156; A168909
                               

   Thomas M. Ryan, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, 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.
Cite as 

 (2021)                            227

        PER CURIAM
          Defendant appeals from a judgment of conviction for
harassment (Count 2), reckless driving (Count 3), recklessly
endangering another person (Count 4), and interfering with
a peace officer (Count 5). Defendant raises five assignments
of error. We reject defendant’s first and second assignments
without written discussion. In his third and fourth assignments, defendant assigns error to the trial court’s instructions to the jury that it could reach a nonunanimous verdict
and that only 10 of 12 jurors needed to concur as to the factual theory for each count. In his fifth assignment, defendant
assigns error to the court’s acceptance of a nonunanimous
verdict on Count 5. The jury reached unanimous verdicts
on Counts 2 through 4 but voted 10 to two to convict on
Count 5.
         The state concedes that the trial court erred in
entering a conviction on Count 5 following a nonunanimous
verdict on that count, citing Ramos v. Louisiana, 

, 

, 

 (2020). We agree and
accept the state’s concession. Defendant maintains that
all of his convictions, including those for which the jury
reached a unanimous verdict, must be reversed because the
court’s error in instructing the jury was “structural error”
that requires automatic reversal on all counts regardless of
whether the error was harmful. We reject that argument for
the reasons stated in State v. Flores Ramos, 

, 

 (2020), in which the Supreme Court concluded that
an erroneous nonunanimous jury instruction was not structural error and was harmless with respect to unanimous
verdicts.
         In addition to defendant’s assignments of error
concerning nonunanimous jury instructions and verdicts,
defendant has asserted an assignment that “[t]he trial court
erred when it instructed the jury that only 10 of 12 jurors
needed to concur as to the factual theory for each count.” He
did not preserve any such argument in the trial court and
develops no argument in his briefing to us that is specific to
this assignment of error. His combined argument on all of
these assignments of error concerns the Sixth Amendment
to the United States Constitution, and he offers no support
228                                           State v. Mutara

for the proposition that the Sixth Amendment or any other
constitutional provision requires juror concurrence as to the
factual theory on each count. See generally Schad v. Arizona,

, 

, 

 (1991)
(“[T]here is no general requirement that the jury reach
agreement on the preliminary factual issues which underlie the verdict.” (Citations omitted.)); State v. Pipkin, 

, 

 (2013) (discussing lack of constitutional underpinnings to Oregon’s jury-concurrence jurisprudence). We do not foreclose the argument in support of
that proposition. However, in the absence of any developed
argument on the issue, we reject this assignment of error
without further discussion.
       Conviction on Count 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.