State v. Black

                                       651

On appellant’s petition for reconsideration filed February 2, and respondent’s petition for reconsideration filed February 3; reconsideration allowed, opinion (

, 

) modified and adhered to as modified March 30, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                JOHNATHAN RICHARD BLACK,
                     Defendant-Appellant.
                Washington County Circuit Court
                     C140510CR; A172621
                                   

   D. Charles Bailey, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, for petition.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, for petition.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
   PER CURIAM
   Reconsideration allowed; opinion modified and adhered
to as modified.
652                                             State v. Black

        PER CURIAM
         Defendant and the state both seek reconsideration
of our prior decision in this matter, State v. Black, 

, 

 (2022), where we reversed and remanded
for the trial court to evaluate whether defendant is entitled
to a new trial under the reasoning in State v. Hightower, 

, 

 (2021), and State v. Bales, 

, 

 (2022). Defendant seeks reconsideration
to clarify our disposition of assignments of error pertaining
to Ramos v. Louisiana, 

, 

, 

 (2020), and State v. Ulery, 

, 

(2020), which we did not discuss in our earlier opinion. The
state seeks reconsideration to correct a factual error in the
opinion. We allow reconsideration and modify our prior
opinion as follows.
         In his opening brief, defendant raised a total of
14 assignments of error. In addition to his challenge to the
trial court’s refusal to grant a new trial, defendant assigned
error to the trial court’s jury instruction which allowed
nonunanimous verdicts and to the trial court’s entry of
a judgment of conviction for Counts 7 and 12 based on
nonunanimous verdicts. The state conceded that the trial
court erred with respect to the judgments of conviction for
Counts 7 and 12 and that the error required reversal and
remand on those counts. Because we did not address those
concerns in our opinion, defendant petitions for reconsideration in order to dispose of the Ramos challenges and prevent any claim that they were waived.
         We agree with both defendant and the state that
Ramos made clear that receiving a jury’s nonunanimous
guilty verdicts is an error of law which requires reversal and
remand. See Ulery, 

. However, the erroneous
jury instruction did not constitute structural error entitling
defendant to reversal of his convictions that were based on
unanimous verdicts. See State v. Beltran, 

, 

 (2022) (citing State v. Flores Ramos,

, 

 (2020)). We thus modify our
prior opinion to acknowledge the disposition of defendant’s
Ramos challenges, and to clarify that, regardless of the trial
court’s resolution of the Bales/Hightower issue, defendant is
Cite as 

 (2022)                                 653

entitled to a new trial on Counts 7 and 12 because of the
nonunanimity issue. We do so by adding the following to the
end of our prior decision:
       “Defendant also argues, and the state concedes, that
   Counts 7 and 12 must be reversed and remanded on
   account of the fact that the verdicts were not unanimous
   on those counts. That means, necessarily, that regardless
   of the trial court’s resolution of whether defendant is entitled to a new trial under Bales and Hightower, defendant is
   entitled to a new trial on Counts 7 and 12.”
         The state contends that we made a factual error
when we stated that the trial court’s initial error limiting
defense expert Johnson’s testimony on vouching grounds
occurred pretrial. Black, 

. We agree
with the state that the record does not support the finding
that the testimony was limited pretrial. Hence, we modify
our earlier opinion to delete the word “pretrial” from the
sentence, “On remand, as in Bales, the trial court must consider whether the record could have developed in a materially different way had it not erroneously concluded, pretrial,
that the excluded testimony by the defense expert would
constitute impermissible vouching.” 

 (emphasis
added). We also delete the sentence, “Where, as here, the
error occurred in a pretrial hearing, that necessarily entails
an assessment both of how the error may have materially
affected the development of the record at the hearing and
how the error may have materially affected the development
of the record at trial.” 

. We replace that sentence with the following sentence: “Where, as here and as in
Hightower, the error occurs during the course of trial, that
requires an assessment of how the error may have affected
the development of the record at trial.”
        Reconsideration allowed; opinion modified and adhered
to as modified.