State v. Todd ( 2021 )

94
Submitted October 14; convictions on Counts 1, 3, and 4 reversed and
remanded, remanded for resentencing, otherwise affirmed December 1, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARL D. TODD, JR.,
Defendant-Appellant.
Washington County Circuit Court
19CR53379; A173692
500 P3d 769
Andrew Erwin, Judge.
Eric W. Nicholson and The Law Offices of Eric Nicholson
filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Convictions on Counts 1, 3, and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 316 Or App 94 (2021) 95
PER CURIAM
Defendant was found guilty by a jury of six offenses.
For three of the counts, the jury returned nonunanimous
guilty verdicts: unlawful use of a weapon, ORS 166.220
(Count 1); and two counts of second-degree use of a stun
gun, tear gas or mace, ORS 163.212 (Counts 3 and 4). For
the other three counts, the jury returned unanimous guilty
verdicts: menacing, ORS 163.190 (Count 2); second-degree
use of a stun gun, tear gas or mace, ORS 163.212 (Count 5);
and reckless driving, ORS 811.140 (Count 6). The trial court
merged the guilty verdict for Count 2 into Count 1.
On appeal, defendant argues that the trial court
plainly erred by accepting the jury’s nonunanimous guilty
verdicts. Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020). The state concedes the error. We
agree, accept the concession, and exercise our discretion to
correct the plain error. State v. Ulery, 366 Or 500, 503, 464
P3d 1123 (2020). Defendant’s challenges to the unanimous
guilty verdicts for Counts 2, 5, and 6 are foreclosed by State
v. Kincheloe, 367 Or 335, 478 P3d 507 (2020), and we there-
fore reject them.
Convictions on Counts 1, 3, and 4 reversed and
remanded; remanded for resentencing; otherwise affirmed.