State v. Lyons

                                   563

   Submitted May 26, 2020; conviction on Count 2 reversed and remanded,
otherwise affirmed November 3, 2021; petition for review denied February 24,
                            2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                     LACY MARIE LYONS,
                      Defendant-Appellant.
                    Lane County Circuit Court
                      17CR03010; A167796
                               

  Suzanne B. Chanti, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew Robinson, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
  PER CURIAM
   Conviction on Count 2 reversed and remanded; otherwise
affirmed.
564                                             State v. Lyons

        PER CURIAM
         Defendant appeals a judgment convicting her of
murder, ORS 163.115, and second-degree assault, ORS
163.175. We reject without discussion her first assignment
of error and write only to address her second. As relevant to
that assignment of error, defendant sought to have the trial
court instruct the jury that it must return unanimous verdicts on all counts. The court rejected that argument and,
instead, instructed the jury that it must return a unanimous verdict on the murder charge but that its verdicts
on the lesser-included offense of first-degree manslaughter and on the assault charge need not be unanimous. The
jury returned a unanimous verdict of guilty on the murder
charge and did not reach the lesser-included manslaughter
charge. The record does not reflect whether the verdict on
the assault charge was unanimous.
         On appeal, defendant contends that the court
erred in instructing the jury that it could find her guilty
of first-degree manslaughter and second-degree assault
by nonunanimous verdict. She contends that the court’s
nonunanimous-jury instructions constitute structural error
or, alternatively, that the erroneous instructions affected
the verdict on the assault charge.
         In light of Ramos v. Louisiana, 

, 

, 

 (2020), and State v. Flores Ramos, 

, 

 (2020), defendant is correct that
the trial court erred in instructing the jury that it could find
her guilty of first-degree manslaughter and second-degree
assault by nonunanimous verdict.
          That error does not in its own right compel reversal of defendant’s assault conviction. See Flores Ramos, 

 (rejecting argument—raised by defendant here
as well—that nonunanimous-jury verdicts constitute structural error). However, in State v. Scott, 

,

 (2021), we held that, when a trial court gives a
nonunanimous-jury instruction over a defendant’s objection,
it is incumbent on the state to demonstrate that the instructional error was harmless beyond a reasonable doubt. State
v. Burke, 

, 

 (2021). Here,
because the record does not reflect whether the verdict was
Cite as 

 (2021)                         565

unanimous on the assault charge, the state cannot satisfy
its burden to demonstrate that the instructional error was
harmless beyond a reasonable doubt as to that count. See
Scott, 

. Accordingly, we reverse defendant’s assault conviction.
        Conviction on Count 2 reversed and remanded;
otherwise affirmed.