State v. Easley

                                     357

Submitted June 29, 2020; in Case Number 18CR45016, convictions on Counts 1
 and 4 reversed and remanded for entry of judgment of conviction for one count
of second-degree assault constituting domestic violence, convictions on Counts 2
 and 5 reversed and remanded for entry of judgment of conviction for one count
of unlawful use of a weapon, convictions on Counts 3, 6, 9, and 10, reversed and
   remanded for entry of judgment of conviction for one count of fourth-degree
 assault constituting domestic violence, remanded for resentencing, otherwise
       affirmed; in Case Numbers 18CN03132 and 18CN04373, affirmed
         March 31; petition for review denied July 29, 2021 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  JAMES DEQUAN EASLEY,
                     Defendant-Appellant.
               Washington County Circuit Court
              18CR45016, 18CN03132, 18CN04373;
              A169457 (Control), A169458, A169485
                                 

    Ricardo J. Menchaca, Judge.
    Ernest G. Lannet, Chief Defender, and Zachary Lovett
Mazer, Deputy Public Defender, Criminal Appellate Section,
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
    In Case Number 18CR45016, convictions on Counts 1
and 4 reversed and remanded for entry of judgment of conviction for one count of second-degree assault constituting
domestic violence; convictions on Counts 2 and 5 reversed
and remanded for entry of judgment of conviction for one
count of unlawful use of a weapon; convictions on Counts 3,
6, 9, and 10, reversed and remanded for entry of judgment of
conviction for one count of fourth-degree assault constituting domestic violence; remanded for resentencing; otherwise
affirmed. In Case Numbers 18CN03132 and 18CN04373,
affirmed.
358                                             State v. Easley

         PER CURIAM
          Defendant was found guilty by unanimous jury
verdicts of two counts of second-degree assault constituting domestic violence, ORS 163.175 (Counts 1 and 4); two
counts of unlawful use of a weapon, ORS 166.220 (Counts 2
and 5); and four counts of fourth-degree assault constituting domestic violence, ORS 163.160(3) (Counts 3, 6, 9, and
10). In a related case, consolidated on appeal, defendant also
was found in contempt on five counts stemming from violations of a restraining order. On appeal, defendant assigns
eight errors. We reject without written discussion the first
and second assignments, related to motions for judgment of
acquittal, and the seventh and eighth assignments, related
to the contempt proceedings.
          In the third, fourth, and fifth assignments, defendant contends that the trial court plainly erred when it
failed to merge the guilty verdicts for the two counts of
second-degree assault, the two counts of unlawful use of a
weapon, and the four counts of fourth-degree assault. The
state, for its part, concedes that the trial court erred in failing to merge those guilty verdicts because there is insufficient evidence in the record to foreclose their merger. Under
applicable law, merger is required under the circumstances
of this case unless there was a “sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3).
         Based on the evidence in the record, we agree
with the state that the court erred in failing to merge the
identified counts, and, for the reasons expressed in State
v. Orobio-Juan, 

, 

 (2008),
we exercise our discretion to review and correct the plain
error. We therefore reverse the judgment and remand with
instructions to enter judgments of conviction for one count
of second-degree assault, one count of unlawful use of a
weapon, and one count of felony fourth-degree assault.
         In his sixth assignment, defendant contends that
instructing the jury that it could return nonunanimous
verdicts constituted a structural error requiring reversal. After the United States Supreme Court ruled against
nonunanimous jury verdicts for serious offenses in Ramos
Cite as 

 (2021)                           359

v. Louisiana, 

, 

, 

(2020), the Oregon Supreme Court held that providing a
nonunanimous jury instruction was not a structural error
that categorically requires reversal in every case. State v.
Flores Ramos, 

, 

 (2020). When,
as here, the jury’s verdicts were unanimous despite the
nonunanimous instruction, the erroneous instruction was
“harmless beyond a reasonable doubt.” State v. Ciraulo, 

, 

 (2020). Therefore, we reject defendant’s sixth assignment of error.
         In Case Number 18CR45016, convictions on Counts
1 and 4 reversed and remanded for entry of judgment of conviction for one count of second-degree assault constituting
domestic violence; convictions on Counts 2 and 5 reversed
and remanded for entry of judgment of conviction for one
count of unlawful use of a weapon; convictions on Counts 3,
6, 9, and 10, reversed and remanded for entry of judgment of
conviction for one count of fourth-degree assault constituting domestic violence; remanded for resentencing; otherwise
affirmed. In Case Numbers 18CN03132 and 18CN04373,
affirmed.