State v. Guerrero

                                   383

 Submitted June 15; conviction on Count 4 reversed and remanded, remanded
   for resentencing, otherwise affirmed July 14; petition for review denied
                       November 24, 2021 (

)


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             ROBERT GUADALUPE GUERRERO,
                   Defendant-Appellant.
                Marion County Circuit Court
                   18CR58854; A172271
                                

   Thomas M. Hart, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Conviction on Count 4 reversed and remanded; remanded
for resentencing; otherwise affirmed.
384                                          State v. Guerrero

        PER CURIAM
         Defendant was convicted by unanimous jury verdict on one count of second-degree assault (Count 1) and
two counts of fourth-degree assault constituting domestic violence (Counts 2 and 3) and convicted by nonunanimous jury verdict on one count of unlawful use of a weapon
(Count 4). On appeal, defendant argues that the trial court
erred in failing to give a requested jury instruction on less
satisfactory evidence, erred in instructing the jury that it
could return a nonunanimous verdict, and plainly erred in
accepting a nonunanimous verdict on Count 4. We reject
without discussion defendant’s argument concerning the
jury instruction on less satisfactory evidence. With respect
to the convictions based on unanimous verdicts, we reject
defendant’s structural-error argument for the reasons
stated in State v. Flores Ramos, 

, 

(2020), and State v. Kincheloe, 

, 

(2020), cert den, ___ US ___, 

, 

(2021). The state concedes that the trial court’s acceptance of
a nonunanimous verdict on Count 4 constitutes plain error
and that that conviction must be reversed in light of Ramos
v. Louisiana, 

, 

, 

(2020). We agree and accept the concession, and we exercise
our discretion to correct the error for the reasons set forth in
State v. Ulery, 

, 

 (2020).
       Conviction on Count 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.