State v. Davis

                                    464

   Submitted May 5; convictions on Counts 1 and 4 reversed and remanded,
  remanded for resentencing, otherwise affirmed June 16; petition for review
                    denied August 26, 2021 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  BYRON EDWARD DAVIS,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                     18CR49635; A171261
                                

   Leslie G. Bottomly, Judge.
   Frances J. Gray filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
  Convictions on Counts 1 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                                              465

           PER CURIAM
         Defendant was convicted by nonunanimous jury
verdicts of fourth-degree assault constituting domestic violence (Count 1) and attempted second-degree assault (Count
4). He was also convicted by unanimous jury verdicts of
second-degree assault constituting domestic violence (Count
2), unlawful use of a weapon constituting domestic violence
(Count 3), and unlawful use of a weapon (Count 5). Defendant
appeals the judgment of conviction and raises four assignments of error. We reject his fourth assignment without discussion. In his first two assignments, defendant contends
that the trial court erred under the Sixth Amendment to
the United States Constitution by instructing the jury that
it could render nonunanimous verdicts and by accepting
nonunanimous verdicts.1 Defendant asserts that the trial
court’s error was structural and requires reversal of all of
his convictions.
         In response, the state concedes that the trial court
erred by instructing the jury that it could return a nonunanimous verdict and by accepting nonunanimous verdicts on
Counts 1 and 4. The state argues that instructing the jury
that it could return a nonunanimous verdict did not constitute structural error and is harmless as to Counts 2, 3, and 5.
        We agree with the state and accept its concession
as to Counts 1 and 4. The nonunanimous jury instruction
violated the Sixth Amendment. Ramos v. Louisiana, 

, 

, 

 (2020). The
Oregon Supreme Court has held, however, that providing
a nonunanimous jury instruction is not a structural error
that requires reversal in every case. State v. Flores Ramos,

, 

 (2020). Here, the verdicts on
Counts 2, 3, and 5 were unanimous, and, therefore, the error
was harmless as to those counts. 

.
       Convictions on Counts 1 and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.

    1
       Our disposition of defendant’s first and second assignments of error obviates the need to reach his unpreserved third assignment in which he contends
that, by imposing sentence when some of the verdicts were nonunanimous, the
trial court violated Article I, section 16, of the Oregon Constitution.