State v. Borchman ( 2020 )

132
Submitted July 15, reversed and remanded August 19, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERIC MICHAEL BORCHMAN,
Defendant-Appellant.
Coos County Circuit Court
19CR06508; A170729
471 P3d 825
Andrew E. Combs, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded.
Cite as 306 Or App 132 (2020) 133
PER CURIAM
Defendant appeals a judgment of conviction for
nine offenses. On each of the nine counts, the jury found
defendant guilty by a nonunanimous verdict. In his first
assignment of error, defendant claims that the trial court
erred in admitting a prior consistent statement of a witness.
The balance of defendant’s assignments of error challenge
as plain error the court’s decision to instruct the jury that
it could return nonunanimous verdicts and its acceptance
of nonunanimous verdicts. As the state concedes, the court
plainly erred in accepting the nonunanimous verdicts in
view of the Supreme Court’s decision in Ramos v. Louisiana,
590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). For the
reasons similar to those articulated in State v. Ulery, 366 Or
500, 464 P3d 1123 (2020), we accept the state’s concession
and exercise our discretion to correct that plain error. We do
not address defendant’s claim of evidentiary error, because
the evidence may develop differently on retrial. See State v.
Wellington, 304 Or App 455, 456, 466 P3d 96 (2020) (taking
analogous approach).
Reversed and remanded.