State v. Mershon

                                  232

Argued and submitted April 2; conviction on Count 5 reversed and remanded,
  remanded for resentencing, otherwise affirmed May 5; petition for review
                   denied August 26, 2021 (

)


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               RICHARD ROBERT MERSHON,
                   Defendant-Appellant.
                Yamhill County Circuit Court
                   17CR78725; A171325
                               

  John L. Collins, Judge.
   Stephen A. Houze argued the cause and filed the briefs
for appellant. Also on the opening brief was Jacob G. Houze.
   Peenesh Shah, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
   Conviction on Count 5 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                              233

        PER CURIAM
         Defendant appeals a judgment of conviction on two
counts of attempted murder (Counts 1 and 5), one count of
first-degree assault (Count 2), three counts of menacing
(Counts 4, 7, and 12), two counts of unlawful use of a weapon
(Counts 6 and 11), one count of fourth-degree assault (Count 8),
and two counts of harassment (Counts 9 and 10). The
charges stemmed from his conduct at a restaurant where he
had too much to drink. After employees tried to help defendant home, he sexually harassed the employees, punched
a bystander and a restaurant employee, shot at two people
who tried to intervene, hitting one of them (and also shooting his own hand), before threatening another bystander
who tried to help the person he had shot. The jury’s guilty
verdicts on the charged conduct were unanimous on all but
Count 5.
         Defendant raises seven assignments of error, and
we begin by addressing his second and third assignments,
in which he contends that the trial court erred by instructing the jury that it could return nonunanimous verdicts on
all counts, and by then accepting a nonunanimous verdict
on Count 5. The state concedes that the court’s jury instruction and receipt of a nonunanimous verdict constituted
reversible error with regard to Count 5, and we agree that
the conviction on Count 5 must be reversed and remanded
for that reason. See State v. Ulery, 

, 

(2020) (receipt of a nonunanimous guilty verdict for a nonpetty offense constitutes reversible error). Any instructional
error regarding unanimity as to the remaining counts, on
which the jury returned unanimous verdicts, was not structural error and was harmless beyond a reasonable doubt.
See State v. Kincheloe, 

, 

 (2020); State
v. Flores Ramos, 

, 

 (2020).
        Turning to defendant’s first assignment of error,
he argues that the trial court erred in granting the state’s
motion to admit statements he made to a detective while at
the hospital where he was being treated for his hand injury.
Defendant argues that he unequivocally invoked his right
to counsel at the scene, and that the later interrogation at
the hospital violated his rights under Article I, section 12,
234                                        State v. Mershon

of the Oregon Constitution and the Fifth Amendment to the
United States Constitution. We agree with the state that
defendant reinitiated the conversation with the detective
and, after Miranda warnings were re-administered, waived
his right to counsel before any interrogation.
         Defendant’s fifth assignment of error challenges
the denial of his motions for judgment of acquittal on Counts
1 through 6, on the ground that “[t]he evidence, even in
the light most favorable to the state, clearly demonstrated
that defendant was extremely intoxicated and no rational
jury could find that he formed the requisite mental state
of ‘intent.’ ” We agree with the state that the evidence
was sufficient to allow a jury to find that defendant acted
intentionally.
         Defendant’s remaining assignments (fourth, sixth,
and seventh) raise claims of error that were not preserved
in the trial court and do not constitute plain error that we
would exercise our discretion to correct.
       Conviction on Count 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.