State v. Miles

                                   111

Submitted July 20; conviction on Count 5 reversed and remanded, remanded for
              resentencing, otherwise affirmed August 18, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    VIRGIL VERN MILES,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     18CR75297; A171148
                                

   Douglas V. Van Dyk, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Sercombe, Senior Judge.
   PER CURIAM
   Conviction on Count 5 reversed and remanded; remanded
for resentencing; otherwise affirmed.
112                                            State v. Miles

        PER CURIAM
         Defendant was convicted based on unanimous jury
verdicts on two counts of first-degree sodomy (Counts 1 and 2)
and one count of first-degree sexual abuse (Count 3). The
jury returned a nonunanimous guilty verdict on a second
count of first-degree sexual abuse (Count 5). On appeal,
defendant contends that the court plainly erred in instructing the jury that it could return nonunanimous verdicts,
and plainly erred in accepting a nonunanimous verdict
on Count 5. See Ramos v. Louisiana, 

, 

, 

 (2020) (nonunanimous verdicts for
serious offenses violate the Sixth Amendment to the United
States Constitution). The state concedes the error as to the
nonunanimous verdict but asserts that the error was harmless as to the unanimous verdicts. We agree with the state
and accept its concession that the acceptance of the nonunanimous verdict constituted plain error. State v. Ulery, 

, 

 (2020) (trial court’s acceptance of
a nonunanimous jury verdict is plain error). For the reasons
expressed in Ulery, we exercise our discretion to correct the
error. We reject defendant’s challenge to the jury verdicts
that were unanimous for the reasons set forth in State v.
Flores Ramos, 

, 

 (2020), and
State v. Kincheloe, 

, 

 (2020).
       Conviction on Count 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.