State v. Luton

                                   229

 Submitted November 19, 2020; in Case No. 18CR69878, conviction on Count
 1 reversed and remanded, remanded for resentencing, otherwise affirmed; in
 Case No. 16CR74919, affirmed March 24; petition for review denied July 29,
                             2021 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               HAVEN ALEXANDER LUTON,
                    Defendant-Appellant.
               Washington County Circuit Court
                  18CR69878, 16CR74919;
                 A170399 (Control), A170400
                               

   Theodore E. Sims, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and David B. Thompson, Assistant
Attorney General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   In Case No. 18CR69878, conviction on Count 1 reversed
and remanded; remanded for resentencing; otherwise
affirmed. In Case No. 16CR74919, affirmed.
230                                                        State v. Luton

          PER CURIAM
         In one of these consolidated cases, defendant appeals
from a judgment convicting him of first-degree kidnapping (Count 1), first-degree robbery (Count 2), unlawful
use of a weapon (Count 3), second-degree robbery (Count
4), and third-degree assault (Count 5).1 The jury returned a
nonunanimous verdict on Count 1 and unanimous verdicts
on the remaining counts. On appeal, defendant argues that
the trial court erred in denying his motion for a judgment
of acquittal on Count 1, erred in instructing the jury that
it could return a nonunanimous verdict, and that it plainly
erred in accepting a nonunanimous verdict on Count 1. We
reject defendant’s argument on the motion for judgment of
acquittal without further discussion.
         The state concedes that the trial court’s acceptance
of a nonunanimous verdict on Count 1 constitutes plain
error and that that conviction must be reversed in light of
Ramos v. Louisiana, 

, 

, 

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

, 

 (2020).
         With respect to the convictions based on unanimous
verdicts, we reject defendant’s structural-error argument
for the reasons stated in State v. Flores Ramos, 

,

 (2020), and State v. Kincheloe, 

, 

 (2020).
         In Case No. 18CR69878, conviction on Count 1
reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 16CR74919, affirmed.




    1
      In the other consolidated case, defendant appeals from a judgment revoking his conditional release under ORS 420A.206, but he does not raise any challenges to that judgment.