314 Or. App. 741 - State v. Perkins

                                 741

   Submitted September 2; Count 5 reversed and remanded, remanded for
           resentencing, otherwise affirmed September 22, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 RYAN WAYNE PERKINS,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    19CR05893; A172739

495 P3d 1289



   Jerry B. Hodson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Count 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
742                                           State v. Perkins

        PER CURIAM
         A jury found defendant guilty of aggravated identity theft, ORS 165.803 (Count 1), aggravated first-degree
theft, ORS 164.057 (Count 2), computer crime, ORS 164.277
(Count 3), unlawful use of a vehicle (Count 4), and possession of a stolen vehicle, ORS 819.300 (Count 5). The jury was
unanimous as to all counts except for Count 5. The guilty
verdict on that count, however, merged with the verdict on
Count 4, so the court did not enter a separate conviction on
Count 5. On appeal, defendant argues that the trial court
erred in failing to instruct the jury that the first-degree
theft charge required it find that he acted with a culpable
mental state with respect to the value of the property stolen.
We reject that argument for the reasons set forth in State v.
Stowell,

304 Or App 1, 11-12

466 P3d 1009

 (2020). He next
argues that the court erred in instructing the jury that it
could return nonunanimous verdicts, which was erroneous
under Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020). The state concedes as much, and we conclude that defendant is entitled to reversal of the nonunanimous guilty verdict for Count 5. See, e.g., State v. Quandt,

314 Or App 453, 455

498 P3d 334

 (2021) (reversing nonunanimous verdict on count that had merged with unanimous
verdict on different count). Defendant also argues that the
erroneous instruction entitles him to reversal of all of his
convictions because it constituted structural error. We reject
that argument for the reasons set forth in State v. Flores
Ramos,

367 Or 292, 319

478 P3d 515

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