State v. Hoppe ( 2022 )

72
Submitted December 2, 2021; convictions on Counts 4 and 5 reversed and
remanded, remanded for resentencing, otherwise affirmed January 12, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER RYAN HOPPE,
Defendant-Appellant.
Grant County Circuit Court
19CR34904; A173942
501 P3d 559
W. D. Cramer, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Mooney, Judge, and
DeVore, Senior Judge.
PER CURIAM
Convictions on Counts 4 and 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 317 Or App 72 (2022) 73
PER CURIAM
Defendant was convicted after a jury trial of unau-
thorized use of a vehicle (Count 3), unlawful entry into a
motor vehicle (Count 4), and first-degree criminal trespass
(Count 5).1 The jury returned a unanimous verdict on Count 3
and nonunanimous verdicts on Counts 4 and 5. On appeal,
defendant raises five assignments of error. We reject his
first assignment without discussion. In his remaining four
assignments, he contends that the trial court plainly erred
when it received the jury’s nonunanimous guilty verdicts on
Counts 4 and 5, that the trial court erred in instructing the
jury that it could return nonunanimous verdicts, and that
the trial court erred when, after instructing the jury that it
could return nonunanimous verdicts, it received the jury’s
unanimous guilty verdict on Count 3.
The state concedes, and we agree, that the trial
court erred in giving a nonunanimous jury instruction and
in accepting nonunanimous jury verdicts on Counts 4 and 5,
which necessitates reversal and remand of those two counts.
Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed
2d 583 (2020) (Sixth Amendment requires that the jury
be unanimous to convict a criminal defendant of a serious
offense); State v. Ulery, 366 Or 500, 501, 464 P3d 1123 (2020)
(concluding that trial court’s acceptance of a nonunanimous
verdict constituted plain error and exercising discretion to
correct that error). The Oregon Supreme Court has held,
however, that providing a nonunanimous jury instruction
is not a structural error that requires reversal in every
case. State v. Flores Ramos, 367 Or 292, 319-20, 478 P3d
515 (2020). Here, because the verdict on Count 3 was unan-
imous, the error was harmless as to that count. Id. at 329.
Convictions on Counts 4 and 5 reversed and remanded;
remanded for resentencing; otherwise affirmed.
1
Defendant was acquitted of two counts of first-degree theft (Counts 1 and 2).