State v. Harrison

                                  118

Argued and submitted July 20; conviction on Count 1 reversed and remanded,
      remanded for resentencing, otherwise affirmed August 18, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             ALEXANDER TOMAS HARRISON,
                aka Alex Tomas Harrison,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   19CR22701; A173014
                               

   Melvin Oden-Orr, Judge.
   Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Sercombe, Senior Judge.
   PER CURIAM
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                               119

         PER CURIAM
         Defendant appeals a judgment of conviction for
first-degree assault, ORS 163.185 (Count 1), and unlawful
use of a weapon, ORS 166.220 (Count 2). The jury returned a
10-2 verdict on Count 1 and unanimous verdicts on Count 2
and on whether the offenses involved the use of a firearm.
On appeal, defendant raises five assignments of error. He
contends that the trial court (1) plainly erred in failing to
give a concurrence instruction as to Count 2, and erred in
(2) instructing the jury that it could return nonunanimous
verdicts, (3) accepting a verdict of 10-2 on Count 1, (4) failing
to merge the jury’s guilty verdicts on Counts 1 and 2, and
(5) imposing a firearm-minimum sentence on Count 2.
         The state concedes that the trial court erred in giving a nonunanimous jury instruction and in accepting the
jury’s nonunanimous verdict on Count 1, necessitating reversal and remand of defendant’s conviction on Count 1 only.
We agree with and accept the state’s concessions. See Ramos
v. Louisiana, 

, 

, 

(2020) (Sixth Amendment requires that the jury be unanimous to convict a criminal defendant of a serious offense);
State v. Flores Ramos, 

, 

 (2020)
(error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions based on unanimous guilty verdicts). Accordingly, on
defendant’s second and third assignments, we reverse and
remand defendant’s conviction on Count 1 and remand for
resentencing. That disposition obviates the need to address
defendant’s fourth and fifth assignments of error. We reject
defendant’s first, unpreserved, assignment of error without
further discussion.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.