State v. Arellano-Sanchez

Defendant appealed a conviction for eleven counts.  Defendant assigned error to the trial court giving a jury instruction allowing for nonunanimous verdicts, and plain error for receiving nonunanimous jury verdicts for two counts, first-degree robbery and unlawful use of a weapon; all other counts were unanimous. Defendant further assigned error in the trial court’s failure to give a jury concurrence instruction for second-degree assault and fourth-degree assault.  In response, the State conceded error for accepting nonunanimous verdicts for the two counts.  The Court found that the jury unanimity instruction argument was foreclosed by State v. Flores Ramos, 367 Or 292, 334, 478 P3d 515 (2020).  The need for a concurrence instruction “is not [for] ’factual details, such as whether a gun was a revolver or a pistol and whether it was held in the right or the left hand’. . .  but the ‘facts that the law (or the indictment) has made essential to a crime.’” State v. Greeley, 220 Or App 19, 23 (quoting State v. Boots, 308 Or 371, 379 (1989), cert den, 510 US 1013 (1993)).  The Court found that the jury would not be in disagreement because there was no dispute Defendant "engaged in a continuous, unbroken, and brief combat involving a knife” and the victim received a cluster of wounds.  Thus, the Court held that a jury concurrence instruction was not required. Convictions on Counts 1 and 6 reversed and remanded because of Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020); State v. Ulery, 366 Or 500, 504, 464 P3d 1123 (2020); remanded for resentencing; otherwise affirmed.