State v. Gurrola

498 P.3d 355, 315 Or. App. 476

• Court: Court of Appeals of Oregon
• Decided: October 27, 2021
• Docket: A173354
• Status: Published

Opinion

Submitted October 7; conviction on Count 2 reversed and remanded, remanded for resentencing, otherwise affirmed October 27, 2021

STATE OF OREGON, Plaintiff-Respondent, v. YESSICA GURROLA, Defendant-Appellant. Marion County Circuit Court 19CR44748; A173354 498 P3d 355

Thomas M. Hart, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Peter G. Klym, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge. PER CURIAM Conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed. Cite as 315 Or App 476 (2021) 477

PER CURIAM Defendant appeals a judgment convicting her of unauthorized use of a vehicle, ORS 164.135 (Count 2), and resisting arrest, ORS 162.315 (Count 3). The conviction for unauthorized use of a vehicle was based on a nonunani- mous jury verdict; the jury verdict on resisting arrest was unanimous. On appeal, defendant first argues that the trial court erred in denying her motion for judgment of acquit- tal on the unauthorized use of a vehicle charge; we reject that argument without discussion. Defendant also contends that the court plainly erred in instructing the jury that it could return nonunanimous verdicts, and plainly erred in accepting a nonunanimous verdict on Count 2. See Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020) (nonunanimous verdicts violate the Sixth Amendment to the United States Constitution). The state concedes the error as to the nonunanimous verdict but asserts that the error was harmless. We agree with the state and accept its concession that the acceptance of the nonunanimous verdict constituted plain error. State v. Ulery, 366 Or 500, 503-04, 464 P3d 1123 (2020) (trial court’s acceptance of a nonunan- imous jury verdict is plain error). For the reasons expressed in Ulery, we exercise our discretion to correct the error. We reject defendant’s challenge to the unanimous verdict on Count 3 for the reasons set forth in State v. Flores Ramos, 367 Or 292, 294, 334, 478 P3d 515 (2020). Conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.