State v. Borrego

                                   578

  Submitted December 15, 2020; convictions on Counts 4 and 5 reversed and
   remanded, remanded for resentencing, otherwise affirmed April 7, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                     JERRY BORREGO,
                     Defendant-Appellant.
                  Marion County Circuit Court
                     18CR44399; A171147
                               

   David E. Leith, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
  Convictions on Counts 4 and 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                                             579

           PER CURIAM
         Defendant was found guilty by jury verdict on two
counts of attempted aggravated murder with a firearm
(Counts 4 and 5), one count of first-degree assault with a
firearm (Count 6), and one count of felon in possession of a
firearm (Count 9). The jury returned unanimous verdicts for
the first-degree assault and felon-in-possession counts, but
the verdicts were not unanimous for either of the attempted
aggravated murder counts. We discuss briefly each of defendant’s three assignments of error on appeal. Because we
conclude that the verdicts for attempted aggravated murder
are erroneous, we reverse and remand the judgment of conviction for those counts, but otherwise affirm.
          In the first assignment, defendant argues that, read
together, the aggravated murder statute, ORS 163.095(1)(d)
(2018), amended by Or Laws 2019, ch 635, § 1, and the
attempted crime statute, ORS 161.405, mean that it was
not permissible to charge defendant with two counts of
attempted aggravated murder when none of the alleged
victims of the crime died.1 Defendant fired five shots into
a truck containing two persons—one he knew and one a
stranger. The stranger was struck in the face by a bullet
but survived. The state charged defendant with two counts
of attempted aggravated murder on the theory that, at the
time of the shooting, by intentionally attempting to kill each
victim, the requisite multiple victims were present. ORS
163.095(1)(d) (2018). Defendant argues that the presence of
multiple victims is an attendant circumstance, that each
element of an attempt crime requires an intentional mens
rea, and that, under controlling law, it is legally impossible to attach such mens rea to a circumstance element. We
thoroughly examined, and rejected, the same argument in
State v. Kyger, 

, 

 (2020). Any differences in the factual contours between this case and Kyger
do not dictate a different result. Consequently, we reject the
first assignment claiming that the trial court erred by denying defendant’s motion in arrest of judgment.
    1
      Defendant argues that, when no one dies as a result of the attempted killings, charges may only be properly brought under ORS 163.115 and ORS 161.405,
that is, attempted murder, not attempted aggravated murder.
580                                        State v. Borrego

        In the second and third assignments, defendant
asserts that instructing the jury that it could return
nonunanimous verdicts and then accepting those verdicts
constituted a structural error requiring reversal. After the
United States Supreme Court ruled, in Ramos v. Louisiana,

, 

, 

 (2020), that
nonunanimous jury verdicts for serious offenses violate
the Sixth Amendment, 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). Additionally, when, as here, the jury returns
mixed—both unanimous and nonunanimous—verdicts,
despite the nonunanimous instruction, such “instructional
error was harmless as to the unanimous verdicts.” 

. However, with respect to the two attempted aggravated
murder counts, each receiving 11-1 votes in favor of guilt,
defendant is correct in claiming error based on the trial
court receiving the nonunanimous verdicts. 

.
       Convictions on Counts 4 and 5 reversed and
remanded; remanded for resentencing; otherwise affirmed.