State v. Schuster

                                  260

Argued and submitted May 11; conviction on Count 1 reversed and remanded,
  remanded for resentencing, otherwise affirmed; supplemental judgment
                  reversed and remanded June 8, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               BREANNA MARIE SCHUSTER,
                  aka Breanna Schuster,
                   Defendant-Appellant.
                 Coos County Circuit Court
                   19CR24172; A173204
                              

  Martin E. Stone, Judge.
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Christopher A. Perdue, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  PER CURIAM
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed. Supplemental judgment reversed and remanded.
Cite as 

 (2022)                            261

        PER CURIAM
          Defendant appeals a judgment of conviction for one
count of first-degree arson, ORS 164.325 (Count 1), one count
of first-degree burglary, ORS 164.225 (Count 2), one count
of first-degree criminal mischief, ORS 164.365 (Count 3),
and one count of first-degree theft, ORS 164.055 (Count 4).
Defendant was found guilty of Count 1 by a nonunanimous
jury verdict and was found guilty of Counts 2 through 4 by
unanimous jury verdicts. Defendant also appeals a supplemental judgment imposing $40,290 in restitution on
Count 1.
         On appeal, defendant raises six assignments of
error. We reject defendant’s first through third assignments
of error, and her sixth assignment of error, without discussion. We write to address defendant’s fourth and fifth
assignments of error.
         In her fourth assignment of error, defendant contends that the trial court plainly erred in instructing the
jury that it could convict her by nonunanimous verdict, and
that that error requires reversal of Counts 1 through 4.
Defendant acknowledges that in State v. Flores Ramos, 

, 

 (2020), the Supreme Court held that
a nonunanimous jury instruction does not a require reversal where the jury returned a unanimous guilty verdict—as
is the case here in Counts 2 through 4—but argues Flores
Ramos was wrongly decided. In her fifth assignment of
error, defendant contends that the trial court plainly erred
by accepting a nonunanimous guilty verdict on Count 1.
         In response, citing Flores Ramos, the state concedes that the trial court erred in instructing the jury that
it could convict defendant by nonunanimous verdicts but
argues that that error was harmless with respect to Counts
2 through 4 because those verdicts were unanimous. The
state also concedes that, under Ramos v. Louisiana, 

, 

, 

 (2020), the conviction on
Count 1 must be reversed, and the case must be remanded.
        For the reasons stated in Flores Ramos, we reject
defendant’s argument that reversal is required as to Counts
2 through 4, for which the jury returned unanimous verdicts.
262                                         State v. Schuster

. With regard to Count 1, we agree with and
accept the state’s concessions, exercise our discretion to correct the errors for the reasons set forth in State v. Ulery,

, 

 (2020), and we therefore reverse
defendant’s conviction on Count 1 and the supplemental
judgment awarding restitution on Count 1.
        Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed. Supplemental judgment reversed and remanded.