State v. Damper

Receipt of a nonunanimous verdict is plain error that an appellate court should exercise its discretion to review, it is an error that cannot be found harmless.

Defendant appealed a conviction for two counts of promoting prostitution. The jury returned a nonunanimous guilty verdict on Count 1, 10-2 and a unanimous guilty verdict on Count 2. Defendant assigned error to trial court’s instruction to the jury that it could return nonunanimous verdicts. While defendant’s appeal was pending the U.S. Supreme Court issued its decision in Ramos v. Louisiana, 140 S Ct 1390, concluding entry of judgment based on nonunanimous verdicts violates a defendant’s right to jury trial under the Sixth Amendment. Receipt of a nonunanimous verdict is plain error that an appellate court should exercise its discretion to review, it is an error that cannot be found harmless. The State conceded that under Ramos, the trial court erred in accepting a nonunanimous verdict. Defendant’s conviction on Count 1 is REVERSED AND REMANDED; REMANDED for resentencing, otherwise AFFIRMED.