State v. Gabonia

481 P.3d 412, 309 Or. App. 342

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A170498
• Status: Published

Opinion

Submitted June 5, 2020; Counts 2, 4, and 8 reversed and remanded, remanded for resentencing, otherwise affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. LEO GABONIA, Defendant-Appellant. Washington County Circuit Court 18CR17436; A170498 481 P3d 412

Janelle F. Wipper, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Counts 2, 4, and 8 reversed and remanded; remanded for resentencing; otherwise affirmed. Cite as 309 Or App 342 (2021) 343

PER CURIAM Defendant was convicted by jury on two counts of first-degree sodomy (Counts 1 and 2); two counts of first- degree unlawful sexual penetration (Counts 3 and 4); three counts of first-degree sexual abuse (Counts 5, 7, and 8); and one count of luring a minor (Count 9). Defendant argues on appeal that the court erred in instructing the jury that it could return nonunanimous verdicts, and in accept- ing nonunanimous verdicts on Counts 2, 4, and 8. He also challenges the constitutionality of his sentence. The state concedes that defendant’s convictions on Counts 2, 4, and 8, based on 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. Because our reversal on those counts requires resentencing it obviates the need to address defendant’s sentencing argu- ments. Defendant argues that his remaining convictions also should be reversed based on the erroneous nonunani- mous 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 erro- neous nonunanimous jury instruction was harmless with respect to unanimous verdicts. Counts 2, 4, and 8 reversed and remanded; remanded for resentencing; otherwise affirmed.