State v. Fisher

487 P.3d 427, 311 Or. App. 748

Opinion

Submitted August 10, 2020; conviction on Count 7 reversed and remanded, remanded for resentencing, otherwise affirmed May 26; petition for review denied July 29, 2021 (368 Or 511)

STATE OF OREGON, Plaintiff-Respondent,

v.

GEORGE DAVID FISHER, SR., Defendant-Appellant.

Washington County Circuit Court 18CR45318; A169092

487 P3d 427

Andrew Erwin, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

PER CURIAM Conviction on Count 7 reversed and remanded; remanded for resentencing; otherwise affirmed.

Cite as 311 Or App 748 (2021) 749

PER CURIAM In this appeal, we reverse and remand defendant’s conviction for harassment, ORS 166.065 (Count 7), which results from the trial court’s acceptance of a nonunanimous verdict. See Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (nonunanimous verdicts for serious offenses not permitted under the Sixth Amendment to the United States Constitution); State v. Ulery, 366 Or 500, 503-04, 464 P3d 1123 (2020) (trial court’s acceptance of a nonunanimous jury verdict is plain error). The state concedes the error; we accept the concession; and, for the reasons expressed in Ulery, exercise our discretion to correct the error.

However, we reject defendant’s structural error challenge to the jury verdicts that were unanimous, Counts 1 through 6. That challenge is foreclosed by State v. Flores Ramos, 367 Or 292, 294, 334, 478 P3d 515 (2020) (error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by unanimous guilty verdicts), and State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020) (same).

Conviction on Count 7 reversed and remanded;

remanded for resentencing; otherwise affirmed.