State v. Merrill
| Decision Date | 03 February 2021 |
| Docket Number | A165105 |
| Citation | 309 Or.App. 68,481 P.3d 441 |
| Parties | STATE of Oregon Plaintiff-Respondent, v. Nicholas Patrick MERRILL, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, for petition.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
Defendant appealed from a judgment of conviction for felony fourth-degree assault constituting domestic violence, ORS 163.160, and felony strangulation constituting domestic violence, ORS 163.187. On appeal, defendant's first and second assignments of error both concerned the interplay between the strangulation and fourth-degree assault statutes. In State v. Merrill , 303 Or. App. 107, 463 P.3d 540 (2020), we rejected those assignments of error, but neglected to rule on the assignments of error raised in defendant's supplemental brief, wherein defendant challenged his convictions by nonunanimous verdicts.
On April 1, 2020, defendant filed a petition for reconsideration, asking us to address his supplemental assignments of error. We held our decision pending resolution of Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), and cases then taken under advisement by the Oregon Supreme Court that presented Ramos issues.
In this case, the trial court instructed the jury, "This being a criminal case, ten or more jurors must agree on your verdict." The jury returned a unanimous guilty verdict on Count 1 and a nonunanimous verdict on Count 2. Defendant did not request a unanimous jury instruction and did not object to the court's receipt of the nonunanimous verdict on Count 2. On appeal, he contends that issuing a nonunanimous instruction and the acceptance of a nonunanimous verdict constitute structural errors that this court must correct, or alternatively, plain error that we should exercise our discretion to correct. The state concedes that defendant's nonunanimous conviction on Count 2 is error, and that this court should exercise its discretion to correct that error despite the lack of objection. We accept the concession and exercise our discretion to reach the merits as plain error. State v. Ulery , 366 Or. 500, 504, 464 P.3d 1123 (2020) ( ).
Accordingly, we modify our original opinion to reverse defendant's conviction on Count 2.
Defendant's challenge to the trial court's nonunanimous instruction on Count 1, where the jury ultimately returned a unanimous verdict, is foreclosed by State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020).
Our original opinion...
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...court or agency has determined a question of law that will still be at issue after the case is remanded."); see also State v. Merrill , 309 Or. App. 68, 71, 481 P.3d 441, rev. den. , 368 Or. 402, 491 P.3d 78 (2021) ("Even when a disposition obviates the need to address an assignment of erro......
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