State v. Sperou

                                 70

     Argued and submitted December 7, 2021, reversed and remanded
                           January 12, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              MICHAEL GEORGE SPEROU,
                    aka Michael Sperou,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   14CR10194; A173587
                             

  Andrew M. Lavin, Judge.
   Steven Sherlag argued the cause for appellant. Also on
the briefs was Sherlag De Muniz LLP.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  PER CURIAM
  Reversed and remanded.
Cite as 

 (2022)                                                 71

           PER CURIAM
          In this criminal proceeding, defendant appeals from
a judgment of conviction for two counts of first-degree unlawful sexual penetration, ORS 163.411, raising 17 assignments
of error. This is defendant’s second appeal; the first appeal
resulted in his convictions being reversed and remanded in
State v. Sperou, 

, 

 (2019). On remand,
defendant proceeded to a second jury trial, the trial court
granted defendant’s motion for judgment of acquittal on
one of the three counts of first-degree unlawful sexual
penetration, and the jury returned 11-to-1 guilty verdicts
on the remaining two counts. On appeal, defendant’s first
16 assignments of error challenge various pretrial evidentiary rulings regarding the admissibility of evidence. In his
seventeenth assignment of error, defendant contends that
the trial court erred in instructing the jury, over his objection, that it could return nonunanimous verdicts and that
the instructional error requires a new trial because the jury
returned nonunanimous guilty verdicts. In response to the
seventeenth assignment of error, the state concedes that
defendant is entitled to a reversal of his convictions under
Ramos v. Louisiana, 

, 

, 

 (2020). We accept the state’s concession and reverse and
remand defendant’s convictions. That disposition obviates
the need to address defendant’s remaining 16 assignments
of error.1
           Reversed and remanded.




    1
      Although the parties encourage us to address defendant’s remaining
assignments of error, especially because the case previously has been remanded
for a new trial and because the parties extensively litigated on remand the
admissibility of the uncharged misconduct evidence at issue, we decline to do so
under the circumstances of this case. The challenged evidence includes a multitude of different incidents or statements, which the state presented in an offer
of proof using the transcripts of the witnesses from the first trial. We decline
to address defendant’s remaining assignments of error because to do so would
require us to speculate on whether and to what extent the parties would maintain the same positions—that is, offer the same evidence and make the same
legal arguments—on remand. Further, as the parties recognize, there are recent
decisions—including those that were decided after the trial court’s thorough ruling in this case—that may bear on the court’s evidentiary rulings on remand.