STATE OF OREGON, Plaintiff-Respondent, v. ROMAN PATINO-OCHOA, aka Ramon Patino-Ochoa, Defendant-Appellant.
18CR27215, 18CR57235; A173702 (Control), A173703
Marion County Circuit Court
December 15, 2021
316 Or App 478 (2021) | 502 P3d 783
Lindsay R. Partridge, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Weston Koyama, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.
PER CURIAM
In Case No. 18CR27215, conviction on Count 1 remanded for resentencing; otherwise affirmed. In Case No. 18CR57235, convictions on Counts 1, 2, 3, 6, and 7 reversed and remanded; remanded for resentencing; otherwise affirmed.
In this consolidated criminal appeal, defendant appeals from two judgments entered after a single jury trial: in Case No. 18CR27215, the jury found defendant guilty of unlawful use of a weapon (Count 1) and menacing constituting domestic violence (Count 2); and in Case No. 18CR57235, the same jury found defendant guilty of unlawful use of a weapon (Count 1), assault in the fourth degree constituting domestic violence (Count 2), menacing constituting domestic violence (Count 3), burglary in the first degree (Count 4), kidnapping in the first degree (Count 6), and unlawful use of a weapon (Count 7), and the court dismissed a first-degree kidnapping charge (Count 5). Because the jury returned nonunanimous verdicts on several counts (as well as nonunanimous verdicts on several enhancement factors to support upward departure sentences), we reverse and remand those convictions for the reasons explained below. We also remand for resentencing the counts where the jury was unanimous as to the conviction, but nonunanimous as to a sentencing-enhancement factor. Finally, we reject defendant’s first assignment of error challenging the denial of a motion for judgment of acquittal without written discussion.
The trial court, over defendant’s objection, instructed the jury that it could return nonunanimous verdicts, and the jury returned nonunanimous verdicts on Counts 1, 2, 3, 6, and 7 in Case No. 18CR57235. The state concedes that the trial court’s instruction was erroneous and that the trial court erred in accepting nonunanimous verdicts. See Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020). We agree and reverse and remand those convictions.1 The error does not, however, require reversal of the convictions on which the verdicts were unanimous. See State v. Kincheloe, 367 Or 335, 339, 478 P3d 507 (2020), cert den, ___ US ___, 141 S Ct 2837 (2021).
Defendant also asserts that the trial court erred in receiving nonunanimous verdicts on several sentencing
In Case No. 18CR27215, conviction on Count 1 remanded for resentencing; otherwise affirmed. In Case No. 18CR57235, convictions on Counts 1, 2, 3, 6, and 7 reversed and remanded; remanded for resentencing; otherwise affirmed.