State v. Wilburn

481 P.3d 410, 309 Or. App. 324

• Court: Court of Appeals of Oregon
• Decided: February 10, 2021
• Docket: A168768
• Status: Published

Opinion

Submitted May 29, 2020; Counts 2 and 3 reversed and remanded, remanded for resentencing, otherwise affirmed February 10, 2021

STATE OF OREGON, Plaintiff-Respondent, v. CHRISTOPHER BRIAN WILBURN, Defendant-Appellant. Curry County Circuit Court 17CR76317; A168768 481 P3d 410

Jesse C. Margolis, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Beth Andrews, Assistant Attorney General, filed the brief for respondent. Before Armstrong, Presiding Judge, and Tookey, Judge, and Kistler, Senior Judge. PER CURIAM Counts 2 and 3 reversed and remanded; remanded for resentencing; otherwise affirmed. Cite as 309 Or App 324 (2021) 325

PER CURIAM Defendant was convicted by jury verdict on two counts of first-degree sexual abuse (Counts 1 and 2), one count of second-degree rape (Count 3), and one count of third-degree rape (Count 4). The jury was instructed that its verdicts need not be unanimous, which was error under the Sixth Amendment. See Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). The jury was unanimous as to Counts 1 and 4, but was not unanimous as to Counts 2 and 3. On appeal, defendant argues that the trial court plainly erred in giving the nonunanimous jury instruction, that the error was structural error, and that all of his con- victions therefore should be reversed. The state concedes that defendant is entitled to reversal on the nonunanimous counts. We agree and accept the concession, and exercise dis- cretion 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 the remaining con- victions, he makes the same arguments that were rejected in State v. Kincheloe, 367 Or 335, 478 P3d 507 (2020), and its companion cases. Counts 2 and 3 reversed and remanded; remanded for resentencing; otherwise affirmed.