State v. Lopez ( 2021 )

684
Submitted November 23; conviction on Count 1 reversed and remanded,
remanded for resentencing, otherwise affirmed December 29, 2021; petition for
review denied March 24, 2022 (369 Or 505)
STATE OF OREGON,
Plaintiff-Respondent,
v.
SALVADOR ABRICA LOPEZ,
aka Salvador Abrica, aka Salvador Abrica-Lopez,
aka Salvador Lopez, aka Lopez Abrica Salvador,
Defendant-Appellant.
Klamath County Circuit Court
16CR22788; A171767
500 P3d 1292
Andrea M. Janney, Judge.
Kenneth A. Kreuscher filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Cite as 316 Or App 684 (2021) 685
PER CURIAM
Defendant was convicted by nonunanimous jury
verdict of first-degree sexual abuse, ORS 163.427 (Count 1).
He was also convicted by unanimous jury verdicts of four
counts of first-degree sexual abuse, ORS 163.427 (Counts 2,
3, 8, and 9) and two counts of first-degree sodomy, ORS
163.405 (Counts 4 and 7).1 Defendant appeals the judgment
of conviction. In his brief submitted through counsel, he
raises three assignments of error, and in a pro se supple-
mental brief, he raises five supplemental assignments of
error. We write to address his first and second assignments
of error, and we reject the remaining assignments without
discussion.
In his first assignment, defendant contends that
the trial court erred under the Sixth and Fourteenth
Amendments to the United States Constitution by accept-
ing a nonunanimous jury verdict on Count 1. In response,
the state concedes that the trial court erred by accepting
the nonunanimous verdict, because that verdict violated the
federal constitution’s unanimous jury requirement as set
forth in Ramos v. Louisiana, 590 US ___, 140 S Ct 1390,
206 L Ed 2d 583 (2020). We agree with the state and accept
its concession as to Count 1. Defendant argues in his sec-
ond assignment that his remaining convictions should be
reversed based on the erroneous nonunanimous verdict
instruction. We reject defendant’s argument that his convic-
tions based on a unanimous verdict also must be reversed.
See State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020)
(erroneous nonunanimous jury instruction was not struc-
tural error and was harmless with respect to unanimous
verdicts).
Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.
1
For unknown reasons, the indictment did not contain a Count 5 or a
Count 6.