State v. Sosna

481 P.3d 1033, 309 Or. App. 403

• Court: Court of Appeals of Oregon
• Decided: February 18, 2021
• Docket: A169752
• Status: Published

Opinion

Submitted January 25; conviction on Count 1 reversed and remanded, remanded for resentencing, otherwise affirmed February 18, 2021

STATE OF OREGON, Plaintiff-Respondent, v. MUIZZ TABIR SOSNA, Defendant-Appellant. Washington County Circuit Court 17CR75838; A169752 481 P3d 1033

Edward J. Jones, Senior Judge. Jedediah Peterson and O’Connor Weber, LLC, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Daniel Norris, Assistant Attorney General, filed the brief for respondent. Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge. PER CURIAM Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed. 404 State v. Sosna

PER CURIAM Defendant appeals a judgment of conviction after a jury found him guilty of second-degree sexual abuse (Count 1), third-degree rape (Count 2), menacing (Count 4, misde- meanor), and unlawful use of a weapon (Count 5).1 The jury’s verdict on Count 1 was 11-1; on the other counts, the jury was unanimous. Defendant first assigns error to the trial court’s denial of his motion for judgment of acquittal on Count 5. We reject that argument without written dis- cussion. In supplemental briefing, he further contends that the trial court plainly erred in instructing the jury that it could return a nonunanimous verdict and in receiving a nonunanimous verdict. The state concedes that defendant’s conviction based on a nonunanimous verdict (Count 1) 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). As for defendant’s structural- error argument concerning his remaining convictions, which were based on unanimous jury verdicts, we reject that argu- ment 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). Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

1 The court merged defendant’s guilty verdict on Count 2 with the guilty verdict on Count 1. Defendant was acquitted of a further count, second-degree kidnapping (Count 3).