State v. Gabonia

• Decision Date: 10 February 2021
• Docket Number: A170498
• Citation: 481 P.3d 412 (Mem),309 Or.App. 342
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Leo GABONIA, Defendant-Appellant.
• Court: Oregon Court of Appeals

309 Or.App. 342

481 P.3d 412 (Mem)

STATE of Oregon, Plaintiff-Respondent, v. Leo GABONIA, Defendant-Appellant.

A170498

Court of Appeals of Oregon.

Submitted June 5, 2020.

February 10, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

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

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

PER CURIAM

Defendant was convicted by jury on two counts of first-degree sodomy (Counts 1 and 2); two counts of first-degree unlawful sexual penetration (Counts 3 and 4); three counts of first-degree sexual abuse (Counts 5, 7, and 8); and one count of luring a minor (Count 9). Defendant argues on appeal that the court erred in instructing the jury that it could return nonunanimous verdicts, and in accepting nonunanimous verdicts on Counts 2, 4, and 8. He also challenges the constitutionality of his sentence. The state concedes that defendant's convictions on Counts 2, 4, and 8, based on nonunanimous verdicts, must be reversed in light of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept that concession. Because our reversal on those counts requires resentencing it obviates the need to address defendant's sentencing arguments. Defendant argues that his remaining convictions also should be reversed based on the erroneous nonunanimous verdict instruction. We reject that argument for the reasons set forth in State v. Flores Ramos , 367 Or. 292, 478 P.3d 515 (2020), in which the court concluded that the erroneous nonunanimous jury instruction was harmless with respect to unanimous verdicts.

Counts 2, 4, and 8 reversed and remanded; remanded for resentencing; otherwise affirmed.