State v. Bittick

                                    686

Submitted November 10; convictions on Counts 1 and 2 reversed and remanded,
remanded for resentencing, otherwise affirmed December 29, 2021; petition for
                 review denied March 24, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    JUSTIN DEWEY BITTICK,
                       Defendant-Appellant.
                    Crook County Circuit Court
                       17CR81343; A171862
                                

   Annette C. Hillman, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary Reese, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
  Convictions on Counts 1 and 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2021)                            687

        PER CURIAM
         Defendant was convicted after a jury trial of two
counts of first-degree manslaughter (Counts 1 and 2), two
counts of second-degree manslaughter (Counts 3 and 4), two
counts of criminally-negligent homicide (Counts 5 and 6),
two counts of third-degree assault (Counts 7 and 8), one
count of driving under the influence of intoxicants (DUII)
(Count 9), one count of reckless driving (Count 10), and four
counts of recklessly endangering another person (Counts 11
through 14). The jury returned a verdict of 11-1 on Counts 1
and 2; the verdicts were otherwise unanimous. The trial
court merged the guilty verdicts on Counts 3 and 5 into the
conviction for first-degree manslaughter on Count 1 and
merged the guilty verdicts on Counts 4 and 6 into the conviction for first-degree manslaughter on Count 2.
         On appeal, defendant contends, in his first three
assignments of error, that the trial court erred in instructing the jury that it could convict based on nonunanimous
verdicts, in accepting the jury’s nonunanimous guilty verdicts on the first-degree manslaughter charges, Counts 1
and 2, and in accepting the jury’s unanimous guilty verdicts on the remaining charges. The state concedes, and we
agree, that the trial court erred in giving a nonunanimous
jury instruction and in accepting nonunanimous jury verdicts on Counts 1 and 2, Ramos v. Louisiana, 

,

, 

 (2020) (Sixth Amendment
requires that the jury be unanimous to convict a criminal
defendant of a serious offense), necessitating reversal and
remand of those convictions. However, the court’s instructional error does not require reversal of the counts for which
the jury was unanimous. State v. Flores Ramos, 

,

 (2020) (instructing the jury that it could return
a nonunanimous guilty verdict not structural error and
harmless where jury’s verdict is unanimous). Consequently,
we reverse and remand defendant’s convictions on Counts 1
and 2 and remand the case for resentencing, which includes
entering new dispositions for the counts that were merged
into Counts 1 and 2. See State v. Cockrell, 

, 

 (2000) (reversal of conviction and affirmance
of another that had been merged with it “has the effect of
688                                        State v. Bittick

‘unmerging’ those crimes,” freeing the trial court to enter
judgment and sentence the defendant on the merged count).
       Defendant’s final assignment of error challenges
the court’s exclusion of certain evidence; we reject that
assignment without discussion.
       Convictions on Counts 1 and 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.