State v. Harris

Full title: STATE OF OREGON, Plaintiff-Respondent, v. WILLIAM DAVID HARRIS…

Court: COURT OF APPEALS OF THE STATE OF OREGON

Date published: Jan 6, 2021

308 Or. App. 461 (Or. Ct. App. 2021)

478 P.3d 1024

Opinion

A170271

01-06-2021

STATE of Oregon, Plaintiff-Respondent, v. William David HARRIS, Defendant-Appellant.

George W. Kelly filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

PER CURIAM.

George W. Kelly filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

PER CURIAM

Defendant appeals a judgment of conviction for first-degree rape, ORS 163.375 (Count 1), and second-degree sexual abuse, ORS 163.425 (Count 2). The verdict on Count 1 was not unanimous. In his first assignment of error, defendant contends that the trial court erred in instructing the jury, over his objection, that it could return nonunanimous verdicts, and, further, that the instructional error requires a new trial on Count 1 because of the nonunanimous verdict on that count.¹ In his second assignment of error, defendant argues that the trial court erred in merging the guilty verdicts on Counts 1 and 2 "for sentencing purposes." In response to the first assignment of error, the state correctly concedes that defendant is entitled to a reversal of his conviction under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We accept the state's concession and reverse and remand the conviction on Count 1. That disposition obviates the need to address defendant's second assignment of error.

1 We do not understand defendant to argue that the instructional error requires a new trial on Count 2, on which the jury returned a unanimous verdict. In any event, that argument would fail. See

Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

State v. Flores Ramos , 367 Or. 292, 334, ––– P.3d –––– (2020) (concluding that nonunanimous jury instructions were harmless where the jury returned unanimous verdicts).