State v. Baez

                                    475

   Submitted November 8; in Case No. 16CR37168, convictions on Counts 2, 4,
  and 6, reversed and remanded, otherwise affirmed; in Case No. 17CR32899,
 convictions on Counts 1, 2, and 4 reversed and remanded, otherwise affirmed
  December 15, 2021; petition for review denied March 24, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               ALBERTO ZENDAJAS BAEZ, JR.,
                     Defendant-Appellant.
                 Marion County Circuit Court
                   16CR37168, 17CR32899;
                  A167711 (Control), A167712
                                 

   Donald D. Abar, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   In Case No. 16CR37168, convictions on Counts 2, 4, and 6,
reversed and remanded; otherwise affirmed. In Case No.
17CR32899, convictions on Counts 1, 2, and 4 reversed and
remanded; otherwise affirmed.
476                                                           State v. Baez

           PER CURIAM
          In a consolidated criminal jury trial, defendant was
convicted of 13 criminal counts arising out of several domestic violence incidents. The trial court, over defendant’s objection, gave a nonunanimous-verdict instruction, and the jury
returned six nonunanimous and seven unanimous guilty
verdicts. On appeal, defendant raises five assignments of
error, all but two we reject without written discussion. As
explained below, we reverse and remand the six convictions
based upon nonunanimous guilty verdicts and affirm the
remaining convictions.
         In Case No. 16CR37168, the jury’s guilty verdicts
were nonunanimous for Count 2 (fourth-degree assault constituting domestic violence), Count 4 (coercion constituting
domestic violence), and Count 6 (strangulation constituting
domestic violence). In Case No. 17CR32899, the jury returned
nonunanimous guilty verdicts for Count 1 (second-degree
assault constituting domestic violence), Count 2 (attempted
second-degree assault constituting domestic violence), and
Count 4 (second-degree assault constituting domestic violence). Defendant challenges those verdicts based on Ramos
v. Louisiana, 

, 

, 

(2020), the state concedes that the Supreme Court’s holding requires reversal of those convictions, and we accept
that concession. Accordingly, we reverse and remand those
counts.
         Defendant further argues that his remaining convictions must also be reversed in light of Ramos because the
instruction permitting a nonunanimous jury verdict constitutes structural error.1 The Oregon Supreme Court has
rejected defendant’s structural error argument in State v.
Flores Ramos, 

, 

 (2020). Further,
when the jury returns unanimous guilty verdicts, despite
the erroneous instruction allowing nonunanimous guilty

    1
      It is worth noting out of a sense of completeness that the Oregon Supreme
Court has explained that a trial court must instruct the jury that specified
nonunanimous not-guilty verdicts are permitted. See State v. Ross, 

, 

 (2021) (concluding that a trial court is required “to instruct
the jury that Oregon law requires a unanimous guilty verdict for all charges and
permits a not-guilty verdict by a vote of 11 to one or 10 to two”).
Cite as 

 (2021)                            477

verdicts, such error is “harmless beyond a reasonable doubt.”
State v. Ciraulo, 

, 

 (2020).
        In Case No. 16CR37168, convictions on Counts 2, 4,
and 6, reversed and remanded; otherwise affirmed. In Case
No. 17CR32899, convictions on Counts 1, 2, and 4 reversed
and remanded; otherwise affirmed.