State v. Santos-Vasquez

481 P.3d 426, 309 Or. App. 332

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A170592
• Status: Published

Opinion

Submitted October 27, 2020; Counts 2, 3, and 5 reversed and remanded, remanded for resentencing, otherwise affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. SAMUEL DE JESUS SANTOS-VASQUEZ, Defendant-Appellant. Washington County Circuit Court 18CR80029; A170592 481 P3d 426

Theodore E. Sims, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appel- lant. Samuel De Jesus Santos-Vasquez filed the supplemen- tal brief pro se. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent. Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge. PER CURIAM Counts 2, 3, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed. Cite as 309 Or App 332 (2021) 333

PER CURIAM Defendant was convicted by jury on two counts of first-degree sexual abuse (Counts 2 and 3), one count of first-degree sodomy (Count 5), one count of second-degree sodomy (Count 6), and one count of second-degree unlaw- ful sexual penetration (Count 7). The jury returned unan- imous verdicts on Counts 6 and 7, but was not unanimous on Counts 2, 3, and 5. On appeal, defendant argues that the trial court erred in failing to give a less-satisfactory- evidence jury instruction, in instructing the jury that it could return nonunanimous verdicts and, in accepting nonunanimous verdicts. He makes additional arguments in a supplemental pro se brief concerning the testimony of a witness. We reject defendant’s less-satisfactory-evidence and pro se arguments without discussion. The state concedes that defendant’s convictions on Counts 2, 3, and 5, which were 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 conces- sion. Defendant argues that his remaining convictions also should be reversed based on the erroneous nonunanimous verdict instruction. We reject that argument for the rea- sons set forth in State v. Flores Ramos, 367 Or 292, 478 P3d 515 (2020), in which the court concluded that the errone- ous nonunanimous jury instruction was not structural error and was harmless with respect to unanimous verdicts. Counts 2, 3, and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.