State v. Courier

481 P.3d 439, 309 Or. App. 334

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A171074
• Status: Published

Opinion

Argued and submitted December 18, 2020; convictions on Counts 3, 5, 9, 10, and 11 reversed and remanded, remanded for resentencing, otherwise affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. JOHN EDWARD COURIER, Defendant-Appellant. Washington County Circuit Court 18CR01964; A171074 481 P3d 439

Andrew Erwin, Judge. George W. Kelly argued the cause and filed the brief for appellant. Dashiell L. Farewell, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General. Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge. PER CURIAM Convictions on Counts 3, 5, 9, 10, and 11 reversed and remanded; remanded for resentencing; otherwise affirmed. Cite as 309 Or App 334 (2021) 335

PER CURIAM Defendant was found guilty by jury verdict on five counts of first-degree sexual abuse (Counts 3, 4, 5, 6, and 9), one count of attempted first-degree sexual abuse (Count 10), one count of strangulation (Count 11), two counts of first- degree criminal mistreatment (Counts 12 and 13), and one count of third-degree assault (Count 14). The trial court merged the verdicts on Counts 4 and 6 with the verdicts on Counts 3 and 5. The verdicts on Counts 12 through 14 were unanimous; the other verdicts were not unanimous. Defendant argues that the trial court erred in admitting certain evidence, and in instructing the jury that it need not reach unanimous verdicts. We reject defendant’s eviden- tiary argument without discussion. The state concedes that defendant’s convictions based on the nonunanimous verdicts must be reversed in light of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree and accept that concession. To the extent that defendant may be argu- ing that his remaining convictions also should be reversed based on the erroneous nonunanimous verdict instruction, we reject that argument for the reasons set forth in State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts.1 Convictions on Counts 3, 5, 9, 10, and 11 reversed and remanded; remanded for resentencing; otherwise affirmed.

1 The nonunanimous verdicts for Counts 4 and 6 are similarly erroneous and no judgment may be entered on those verdicts.