317 Or. App. 63 - State v. Lynch

                                   63

 Submitted December 22, 2021; conviction on Count 6 reversed and remanded,
      remanded for resentencing, otherwise affirmed January 12, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 GERLINDE SPRING LYNCH,
                     Defendant-Appellant.
                  Linn County Circuit Court
                    19CR54294; A173858

501 P3d 563



   Thomas McHill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, 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 Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Conviction on Count 6 reversed and remanded; remanded
for resentencing; otherwise affirmed.
64                                             State v. Lynch

        PER CURIAM
         Defendant was convicted after a jury trial on three
counts of second-degree criminal mischief (Counts 1, 3, and 4);
one count of first-degree criminal mischief (Count 2);
and two counts of first-degree theft (Counts 5 and 6). The
jury was unanimous as to all counts except for Count 6.
Defendant argues that the trial court plainly erred in
instructing the jury that it could return nonunanimous verdicts. He also argues that this constitutes structural error
and that he is entitled to reversal of the conviction based
on the unanimous verdict as well as the nonunanimous
verdict. The state concedes that the court committed plain
error with respect to the nonunanimous verdict on Count 6,
in light of Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020). We agree and accept that concession. We exercise our discretion to correct the error for the
reasons set forth in State v. Ulery,

366 Or 500

464 P3d 1123

(2020). Defendant also argues that his remaining convictions should be reversed based on the erroneous nonunanimous verdict instruction. We reject defendant’s argument
that his conviction based on a unanimous verdict also must
be reversed. See State v. Flores Ramos,

367 Or 292

478 P3d 515

 (2020) (erroneous nonunanimous jury instruction
was not structural error and was harmless with respect to
unanimous verdicts).
       Conviction on Count 6 reversed and remanded;
remanded for resentencing; otherwise affirmed.