310 Or. App. 567 - State v. Case

                                  567

  Argued and submitted February 25, reversed and remanded April 7, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               EDWARD LEMONT CASE, JR.,
                aka Edmond LeMont Case, Jr.,
                    Defendant-Appellant.
                  Polk County Circuit Court
                    17CR61289; A171928

484 P3d 1130



  Rafael A. Caso, Judge pro tempore.
   Rond Chananudech, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jordan R. Silk, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  PER CURIAM
  Reversed and remanded.
568                                            State v. Case

        PER CURIAM
         A nonunanimous jury found defendant guilty of
first-degree sexual abuse, ORS 163.427. On appeal, defendant argues that the trial court erred by denying his motion
for judgment of acquittal, erred by admitting hearsay statements under OEC 803(18a)(b), and plainly erred by allowing the victim’s mother to comment on the credibility of the
victim. We reject the argument on the motion for judgment
of acquittal without discussion, and because we ultimately
reverse and remand for the reasons explained below, do not
reach the other two arguments.
         Defendant asserts that the trial court plainly erred
in instructing the jury that it need not reach unanimous
verdicts and contends that, because the jury returned a
nonunanimous verdict, his conviction must be reversed in
light of Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020). The state, for its part, concedes that
both the instruction and judgment based on the nonunanimous verdict were in error. We agree, accept the state’s concession, and for the reasons explained in State v. Ulery,

366 Or 500

464 P3d 1123

 (2020), exercise our discretion to correct the error.
        Reversed and remanded.