State v. Libbee , 319 Or. App. 85 ( 2022 )

85
Submitted February 28; Counts 4 and 5 reversed and remanded, remanded for
resentencing, otherwise affirmed April 13, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEREMIAH ANDREW LIBBEE,
Defendant-Appellant.
Washington County Circuit Court
19CR38893; A172151
507 P3d 355
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
PER CURIAM
Counts 4 and 5 reversed and remanded; remanded for
resentencing; otherwise affirmed.
86 State v. Libbee
PER CURIAM
A jury convicted defendant of second-degree assault,
ORS 163.175 (Count 1); third-degree assault, ORS 163.165
(Counts 2 and 3); failure to perform the duties of a driver,
ORS 811.705 (Counts 4 and 5); fleeing or attempting to elude
a police officer, ORS 811.540 (Count 6); reckless driving, ORS
811.140 (Count 7); and driving while suspended or revoked,
ORS 811.182(4) (Count 9).1 The jury was unanimous as to all
verdicts, except Counts 4 and 5. The guilty verdicts on Counts
2 and 3 were merged into the verdict on Count 1, and the ver-
dict on Count 5 was merged into the verdict on Count 4.
On appeal, defendant raises four assignments of
error. We reject without written discussion defendant’s first
two assignments. In assignments three and four, defendant
argues, and the state concedes, that the trial court erred
under Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206
L Ed 2d 583 (2020), State v. Ulery, 366 Or 500, 464 P3d 1123
(2020), and State v. Flores Ramos, 367 Or 292, 478 P3d 515
(2020), in instructing the jury that it may return nonunan-
imous guilty verdicts and in accepting nonunanimous ver-
dicts on Counts 4 and 5. We agree and accept the state’s
concession. Accordingly, we reverse and remand defendant’s
conviction on Count 4. The guilty verdict for Count 5, which
the trial court merged into Count 4 and therefore disposed of
without a conviction, must also be reversed and remanded.
Counts 4 and 5 reversed and remanded; remanded
for resentencing; otherwise affirmed.
1
Defendant was acquitted of Driving Under the Influence of Intoxicants,
ORS 813.010 (Count 8).