State v. Gurrola ( 2021 )

476
Submitted October 7; conviction on Count 2 reversed and remanded, remanded
for resentencing, otherwise affirmed October 27, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
YESSICA GURROLA,
Defendant-Appellant.
Marion County Circuit Court
19CR44748; A173354
498 P3d 355
Thomas M. Hart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Conviction on Count 2 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 315 Or App 476 (2021) 477
PER CURIAM
Defendant appeals a judgment convicting her of
unauthorized use of a vehicle, ORS 164.135 (Count 2), and
resisting arrest, ORS 162.315 (Count 3). The conviction for
unauthorized use of a vehicle was based on a nonunani-
mous jury verdict; the jury verdict on resisting arrest was
unanimous. On appeal, defendant first argues that the trial
court erred in denying her motion for judgment of acquit-
tal on the unauthorized use of a vehicle charge; we reject
that argument without discussion. Defendant also contends
that the court plainly erred in instructing the jury that it
could return nonunanimous verdicts, and plainly erred in
accepting a nonunanimous verdict on Count 2. See Ramos
v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583(2020) (nonunanimous verdicts violate the Sixth Amendment
to the United States Constitution). The state concedes the
error as to the nonunanimous verdict but asserts that the
error was harmless. We agree with the state and accept its
concession that the acceptance of the nonunanimous verdict
constituted plain error. State v. Ulery, 366 Or 500, 503-04,
464 P3d 1123 (2020) (trial court’s acceptance of a nonunan-
imous jury verdict is plain error). For the reasons expressed
in Ulery, we exercise our discretion to correct the error. We
reject defendant’s challenge to the unanimous verdict on
Count 3 for the reasons set forth in State v. Flores Ramos,
367 Or 292, 294, 334, 478 P3d 515 (2020).
Conviction on Count 2 reversed and remanded;
remanded for resentencing; otherwise affirmed.