State v. Pugmire

481 P.3d 1036, 309 Or. App. 395

• Court: Court of Appeals of Oregon
• Decided: February 18, 2021
• Docket: A171769
• Status: Published

Opinion

Submitted January 27; convictions on Counts 28, 30, 31, and 33 reversed and remanded, remanded for resentencing, otherwise affirmed February 18, 2021

STATE OF OREGON, Plaintiff-Respondent, v. RENE EDWARD PUGMIRE, Defendant-Appellant. Multnomah County Circuit Court 18CR09282; A171769 481 P3d 1036

Jerry B. Hodson, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge. PER CURIAM Convictions on Counts 28, 30, 31, and 33 reversed and remanded; remanded for resentencing; otherwise affirmed. 396 State v. Pugmire

PER CURIAM Defendant was convicted by jury on two counts of conspiracy to promote prostitution and four counts of pro- moting prostitution. The jury was unanimous as to one count of promoting prostitution (Count 29) and one count of conspiracy to promote prostitution (Count 32). The jury was not unanimous on three counts of promoting pros- titution (Counts 30, 31, and 33) and one count of conspir- acy to promote prostitution (Count 28). Defendant argues on appeal that the court erred in instructing the jury that it could return nonunanimous verdicts and in accepting a nonunanimous verdict on Counts 28, 30, 31, and 33. He also argues that the court erred in failing to merge certain of the convictions. The state concedes that defendant’s convic- tions on Counts 28, 30, 31, and 33, 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. Although defendant did not preserve his arguments concerning the nonunanimous verdicts, we exercise discretion to correct the error for the reasons set forth in State v. Ulery, 366 Or 500, 464 P3d 1123 (2020). 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), and State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts. Given our disposition, we need not address defendant’s argument concerning merger. Convictions on Counts 28, 30, 31, and 33 reversed and remanded; remanded for resentencing; otherwise affirmed.