State v. Pitcher ( 2022 )

269
Submitted December 3, 2021; reversed and remanded on Count 1 and Count 2,
remanded for resentencing, otherwise affirmed January 26, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHAD BRANDON PITCHER,
Defendant-Appellant.
Washington County Circuit Court
17CR63109; A173279
504 P3d 701
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kistler, Senior Judge.
PER CURIAM
Reversed and remanded on Count 1 and Count 2; remanded
for resentencing; otherwise affirmed.
270 State v. Pitcher
PER CURIAM
On appeal, defendant contests his judgment of con-
viction for first-degree manslaughter (Count 1) and felon in
possession of a firearm (Count 3). The state charged defen-
dant by indictment with first-degree murder, ORS 163.115
(Count 1); unlawful use of a weapon, ORS 166.220(1)(a)
(Count 2); and felon in possession of a firearm, ORS 166.270
(Count 3). After a jury found defendant not guilty of first-
degree murder on Count 1, it instead found him guilty of
the lesser-included offense of first-degree manslaughter; it
found defendant guilty as charged on the other two counts.
The sentencing court merged the guilty verdict in Count 2
into the guilty verdict on Count 1, and sentenced defendant
on Counts 1 and 3.
Defendant makes five assignments of error on appeal.
In his first assignment of error, defendant contends that the
court erred in denying his demurrer on Count 3; having
reviewed the record and the arguments, we reject defen-
dant’s assignment without further discussion. In his second,
third, and fourth assignments of error, defendant contends
that the trial court erred in instructing the jury that it
could convict based on nonunanimous verdicts on Counts 1
through 3, and in accepting the jury’s nonunanimous guilty
verdicts on Count 1 and Count 2, and the unanimous guilty
verdict on Count 3. The state concedes, and we agree, that
the trial court erred by improperly instructing the jury on
all the counts and that the error necessitates reversal and
remand of the convictions on Count 1 and Count 2. Ramos
v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583(2020) (Sixth Amendment requires that the jury be unani-
mous to convict a criminal defendant of a serious offense).
However, as to Count 3, defendant’s arguments are fore-
closed by State v. Flores Ramos, 367 Or 292, 319, 478 P3d
515 (2020) (concluding that trial court’s instructional error
on nonunanimous verdicts is harmless when the verdict is
unanimous).
Defendant raised the defense of self-defense in con-
nection with Count 1. With respect to that defense, in his
fifth assignment of error, defendant contends that the trial
court erred in instructing the jury that defendant bore the
Cite as 317 Or App 269 (2022) 271
burden of proving the defense of self-defense by a preponder-
ance of the evidence, in addition to instructing the jury, to
the contrary and correctly, that the state bore the burden of
negating the defense beyond a reasonable doubt. We address
the issue to forestall its recurrence on remand. The state
concedes that the trial court erred insofar as it instructed
the jury that defendant had a burden to prove self-defense.
We accept the state’s concession and conclude that the court
erred when it instructed the jury that self-defense was an
affirmative defense on which defendant had a burden of
proof. “Self-defense is an ‘ordinary defense.’ Once it is raised,
the state has the burden of disproving it beyond a reason-
able doubt. ORS 161.055(1).” State v. Boyce, 120 Or App 299,
305-06, 852 P2d 276 (1993) (internal citation omitted).
Reversed and remanded on Count 1 and Count 2;
remanded for resentencing; otherwise affirmed.