State v. Johns

A court’s acceptance of a nonunanimous verdict is plainly erroneous and a court may use its discretion to correct such error. State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).

Defendant appealed a conviction on multiple counts of first-degree sexual abuse under ORS 163.427. Defendant assigned error to the trial court’s jury instruction which instructed that defendant could be convicted by non-unanimous verdict. Defendant also sought reversal on counts 2 and 3 and asserted that, because both counts resulted from the same course of conduct, the non-unanimous verdict on count 3 called into question the unanimous verdict on count 2. A court’s acceptance of a nonunanimous verdict is plainly erroneous and a court may use its discretion to correct such error. State v. Ulery, 366 Or 500, 464 P3d 1123 (2020).The Court held that a jury instruction that allowed for the conviction of a criminal defendant by a non-unanimous verdict was plainly erroneous. Nonetheless, the court refused to reverse defendant’s conviction on count 2, holding that although counts 2 and 3 involved the same general course of conduct, each count also involved distinct actions by defendant such that the non-unanimous verdict on count 3 did not call into question the verdict on count 2. Convictions on Counts 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 13 reversed and remanded; remanded for resentencing on Count 2; otherwise affirmed.