A nonunanimous jury found defendant guilty of first-degree sexual abuse, ORS 163.427. On appeal, defendant argues that the trial court erred by denying his motion for judgment of acquittal, erred by admitting hearsay statements under OEC 803(18a)(b), and plainly erred by allowing the victims mother to comment on the credibility of the victim. We reject the argument on the motion for judgment of acquittal without discussion, and because we ultimately reverse and remand for the reasons explained below, do not reach the other two arguments.
Defendant asserts that the trial court plainly erred in instructing the jury that it need not reach unanimous verdicts and contends that, because the jury returned a nonunanimous verdict, his conviction must be reversed in light of Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). The state, for its part, concedes that both the instruction and judgment based on the nonunanimous verdict were in error. We agree, accept the states concession, and for the reasons explained in State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020), exercise our discretion to correct the error.
Reversed and remanded.
PER CURIAM