State v. Bedinger , 316 Or. App. 674 ( 2021 )

674
Submitted October 4; convictions on Counts 2 and 4 reversed and remanded,
remanded for resentencing, otherwise affirmed December 29, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID ALEXANDER BEDINGER,
Defendant-Appellant.
Yamhill County Circuit Court
19CR74565; A173391
500 P3d 1291
John L. Collins, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General, and Christopher A. Perdue,
Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Convictions on Counts 2 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 316 Or App 674 (2021) 675
PER CURIAM
A jury unanimously found defendant guilty of
harassment (Count 5) and nonunanimously found defendant
guilty of menacing constituting domestic violence (Count 2)
and fourth-degree assault constituting domestic violence
(Count 4). He was acquitted on Counts 1 and 3. On appeal,
defendant contends that the court plainly erred in instruct-
ing the jury that it could return nonunanimous verdicts, and
plainly erred in accepting nonunanimous verdicts on Counts 2
and 4. 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 in instructing the jury but asserts
that the error was harmless as to the unanimous verdict.
We agree with the state and accept its concession that the
acceptance of the nonunanimous verdicts constituted plain
error. State v. Ulery, 366 Or 500, 503-04, 464 P3d 1123
(2020) (trial court’s acceptance of a nonunanimous jury ver-
dict is plain error). For the reasons expressed in Ulery, we
exercise our discretion to correct the error. We reject defen-
dant’s challenge to the unanimous verdict for the reasons
set forth in State v. Flores Ramos, 367 Or 292, 294, 334, 478
P3d 515 (2020).
Convictions on Counts 2 and 4 reversed and remanded;
remanded for resentencing; otherwise affirmed.