State v. Luton

483 P.3d 1225, 310 Or. App. 229

• Court: Court of Appeals of Oregon
• Decided: March 24, 2021
• Docket: A170399
• Status: Published

Opinion

Submitted November 19, 2020; in Case No. 18CR69878, conviction on Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed; in Case No. 16CR74919, affirmed March 24; petition for review denied July 29, 2021 (368 Or 511)

STATE OF OREGON, Plaintiff-Respondent, v. HAVEN ALEXANDER LUTON, Defendant-Appellant. Washington County Circuit Court 18CR69878, 16CR74919; A170399 (Control), A170400 483 P3d 1225

Theodore E. Sims, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and David B. Thompson, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM In Case No. 18CR69878, conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed. In Case No. 16CR74919, affirmed. 230 State v. Luton

PER CURIAM In one of these consolidated cases, defendant appeals from a judgment convicting him of first-degree kidnap- ping (Count 1), first-degree robbery (Count 2), unlawful use of a weapon (Count 3), second-degree robbery (Count 4), and third-degree assault (Count 5).1 The jury returned a nonunanimous verdict on Count 1 and unanimous verdicts on the remaining counts. On appeal, defendant argues that the trial court erred in denying his motion for a judgment of acquittal on Count 1, erred in instructing the jury that it could return a nonunanimous verdict, and that it plainly erred in accepting a nonunanimous verdict on Count 1. We reject defendant’s argument on the motion for judgment of acquittal without further discussion. The state concedes that the trial court’s acceptance of a nonunanimous verdict on Count 1 constitutes plain error and that that conviction 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 the concession, and we exercise our discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020). With respect to the convictions based on unanimous verdicts, we reject defendant’s structural-error argument for the reasons stated in State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020), and State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020). In Case No. 18CR69878, conviction on Count 1 reversed and remanded; remanded for resentencing; other- wise affirmed. In Case No. 16CR74919, affirmed.

1 In the other consolidated case, defendant appeals from a judgment revok- ing his conditional release under ORS 420A.206, but he does not raise any chal- lenges to that judgment.