State v. Jefferson

                                      754

  Submitted May 3; convictions on Counts 1 and 2 reversed and remanded for
entry of conviction for one count of first-degree rape, remanded for resentencing,
                         otherwise affirmed May 26, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
              RONDRAE DEVANTE JEFFERSON,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR54364; A172083
                                  

    Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    PER CURIAM
   Convictions on Counts 1 and 2 reversed and remanded
for entry of conviction for one count of first-degree rape;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                             755

        PER CURIAM
         Defendant was convicted by a unanimous jury of
first-degree rape, ORS 163.375 (Count 1), three counts of
second-degree sexual abuse, ORS 163.425 (Counts 2, 3, and
5), and third-degree rape, ORS 163.355 (Count 4). He argues
on appeal that the trial court erred in denying his motion
for judgment of acquittal on the first-degree rape charge.
We reject that argument without discussion. He next argues
that the trial court committed structural error in instructing the jury that its verdicts need not be unanimous and
that all of his convictions should be reversed. Although the
jury instruction was erroneous, see Ramos v. Louisiana, 

, 

, 

 (2020), the error is
not structural and does not entitle defendant to reversal of
his convictions based on unanimous verdicts. State v. Flores
Ramos, 

, 

 (2020). Finally, defendant asserts that the trial court plainly erred in failing to
merge the guilty verdicts for Counts 1 and 2, first-degree
rape and second-degree sexual abuse. The state agrees that
the failure to merge those verdicts constituted reversible
plain error.
         We agree and accept the state’s concession.
Defendant’s convictions for first-degree rape and second-degree sexual abuse (Count 2) concerned the same act and,
given the way the offenses were pleaded in this case, Counts
1 and 2 merge pursuant to ORS 161.067(1). For the reasons
set forth in State v. Sheikh-Nur, 

, 

, rev den, 

 (2017), we exercise our discretion to correct the error.
        Convictions on Counts 1 and 2 reversed and
remanded for entry of conviction for one count of first-degree
rape; remanded for resentencing; otherwise affirmed.