State v. Turner

                                   697

 Submitted October 7; convictions on Counts 2 and 3 reversed and remanded,
     remanded for resentencing, otherwise affirmed November 17, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 RAYMOND MERL TURNER,
                    Defendant-Appellant.
                 Benton County Circuit Court
                    17CR16692; A171915
                               

  Matthew J. Donohue, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Convictions on Counts 2 and 3 reversed and remanded;
remanded for resentencing; otherwise affirmed.
698                                          State v. Turner

        PER CURIAM
         Defendant appeals a judgment of conviction for
three counts of first-degree sodomy (Counts 1 to 3); three
counts of first-degree sexual penetration (Counts 4 to 6); and
three counts of first-degree sexual abuse (Counts 7 to 9).
Although the jury was instructed that it need not reach
unanimity to find defendant guilty, it returned unanimous
verdicts on all but Counts 2 and 3. On appeal, defendant
contends that the trial court: (1) abused its discretion under
OEC 403 in admitting certain evidence of other sexual
misconduct by defendant; (2) erred by instructing the jury
that it could convict by a less-than-unanimous verdict; and
(3) erred by accepting the nonunanimous verdicts on Counts
2 and 3.
        When considered in conjunction with the record and
similar cases, including State v. Terry, 

, 

 (2021), and State v. Moles, 

, 

, rev den, 

 (2019), rev’d on other grounds,

, 

 (2020), the trial court’s challenged
OEC 403 ruling was not an abuse of discretion.
         As for nonunanimity, although the trial court erred
in instructing the jury that it could convict by nonunanimous verdicts, that error requires reversal only of the convictions on Counts 2 and 3, the sole counts on which the jury
was not unanimous. State v. Flores Ramos, 

, 

 (2020); State v. Kincheloe, 

, 

(2020). The error does not require reversal of the convictions
on which the verdicts were unanimous. 

       Convictions on Counts 2 and 3 reversed and
remanded; remanded for resentencing; otherwise affirmed.