State v. Brown

                                    284

  Submitted May 26, 2020; conviction on Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed October 20; petition for review
                  denied December 23, 2021 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                AARON MICHAEL BROWN,
           aka Aaron Brown, aka Aaron M. Brown,
                 aka Aaron Brown-Andreson,
                    Defendant-Appellant.
                Jackson County Circuit Court
                    18CR48312; A168908
                                

   Timothy Barnack, 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 Beth Andrews, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2021)                             285

        PER CURIAM
         In this criminal appeal, defendant seeks reversal
of his convictions for three counts of robbery in the second
degree, ORS 164.405. The jury returned a nonunanimous
verdict on Count 1 and unanimous verdicts on the remaining counts. Defendant appeals, raising five assignments of
error. We briefly address defendant’s first, third, fourth, and
fifth assignments of error below. We reject defendant’s second assignment of error without discussion.
         A detailed discussion of the facts would be of little
benefit to the bench, bar, or public. The charges arose out
of a single incident in which defendant was alleged to have
displayed a firearm while taking merchandise from a retail
store. In his first assignment of error, defendant contends
that the trial court erred in denying his motion for judgment
of acquittal on Count 2. In particular, defendant contends
that the state’s evidence was insufficient to permit the jury
to find, beyond a reasonable doubt, that, in the course of
committing the theft, he “threaten[ed] the immediate use
of physical force” upon the assistant manager of the store,
as required for second-degree robbery. See ORS 164.395(1)
(defining third-degree robbery); ORS 164.405 (defining
second-degree robbery).
         Having reviewed the briefing, the relevant portions
of the record, and the applicable law, we reject defendant’s
argument as to his conviction on Count 2. Viewed in the light
most favorable to the state, the evidence is sufficient under
State v. Hall, 

, 

 (1998), for the jury to
find that defendant implicitly threatened the immediate use
of physical force upon the assistant manager. During defendant’s encounter with the assistant manager there were
arguably two instances of conduct from which the jury could
have drawn the requisite inference that defendant intended
to threaten that person with an immediate use of force. We
address only the second instance. There, in the presence of
the assistant manager, defendant gathered the goods that
he was stealing, removed a firearm from his pocket, and
held it under the goods as he exited the store. Under those
circumstances, the jury could reasonably have inferred that
defendant’s display of the weapon while in close proximity
286                                           State v. Brown

to the assistant manager constituted an implicit threat.
Accordingly, the trial court did not err in denying defendant’s motion for judgment of acquittal.
         In his third, fourth, and fifth assignments of error,
defendant contends that the trial court erred in instructing
the jury that it need not reach unanimous verdicts, publishing improper verdict forms, and accepting a nonunanimous
verdict on Count 1. The state concedes that the trial court’s
acceptance of a nonunanimous verdict on Count 1 constitutes plain error and that the 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).
         With respect to the convictions based on unanimous
verdicts, we reject defendant’s structural-error and nonharmless error arguments for the reasons stated in State v.
Flores Ramos, 

, 

 (2020), and State v.
Kincheloe, 

, 

 (2020), cert den, ___ US
___, 

 (2021).
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.