State v. Krieger

481 P.3d 406, 309 Or. App. 340

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A168642
• Status: Published

Opinion

Submitted March 31, 2020; Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. MATTHEW ALAN KRIEGER, Defendant-Appellant. Lane County Circuit Court 18CR03821; A168642 481 P3d 406

Valeri L. Love, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge. PER CURIAM Count 1 reversed and remanded; remanded for resen- tencing; otherwise affirmed. Cite as 309 Or App 340 (2021) 341

PER CURIAM Defendant was convicted by jury on one count of delivery of heroin (Count 1) and one count of possession of heroin (Count 2). The jury was unanimous on Count 2, but not on Count 1. Defendant argues on appeal that the trial court erred in denying his motion to suppress evidence, in declining to give his proffered unanimous jury instruction and instructing the jury that it could return nonunanimous verdicts, and in accepting a nonunanimous verdict. We reject defendant’s argument concerning the motion to suppress without discussion. The state concedes that defendant’s con- viction on Count 1 based on a nonunanimous verdict 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. Defendant argues that his remaining conviction 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. Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.