State v. Huynh

Under ORS 136.785(3), enhancement facts must be found by the jury “equal to or greater than the number of jurors that was required to find the defendant guilty of the crime.”

Defendant appealed his convictions of robbery in the third degree, assault in the fourth degree, and interfering with a peace officer. He claimed the trial court erred in instructing the jury that it could return nonunanimous verdicts as to his guilt and enhancement facts. The State conceded that the instructions were an error under Ramos but asserted that the error was harmless as to all of the unanimous verdicts and enhancement facts. Under ORS 136.785(3), enhancement facts must be found by the jury by “equal to or greater than the number of jurors that was required to find the defendant guilty of the crime.” The Court agreed with the State and rejected Defendant’s claims. Under Ramos, a Defendant can only be convicted of his crime by a unanimous jury. Ramos v. Louisiana, 140 S. Ct. 1390 (2020). Thus, the Court was bound by ORS 136.785(3) to apply the enhancement departure at sentencing only when a unanimous jury finds for the enhancement. Because one of the enhancement facts was nonunanimous, the trial court could not apply the enhancement departure. Remanded for resentencing; otherwise affirmed.