A jury convicted defendant of second-degree assault, ORS 163.175 (Count 1); third-degree assault, ORS 163.165 (Counts 2 and 3); failure to perform the duties of a driver, ORS 811.705 (Counts 4 and 5); fleeing or attempting to elude a police officer, ORS 811.540 (Count 6); reckless driving, ORS 811.140 (Count 7); and driving while suspended or revoked, ORS 811.182(4) (Count 9).
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The jury was unanimous as to all verdicts, except Counts 4 and 5. The guilty verdicts on Counts 2 and 3 were merged into the verdict on Count 1, and the verdict on Count 5 was merged into the verdict on Count 4.
On appeal, defendant raises four assignments of error. We reject without written discussion defendants first two assignments. In assignments three and four, defendant argues, and the state concedes, that the trial court erred under Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), State v. Ulery, 366 Or. 500, 464 P.3d 1123 (2020), and State v. Flores Ramos, 367 Or. 292, 478 P.3d 515 (2020), in instructing the jury that it may return nonunanimous guilty verdicts and in accepting nonunanimous verdicts on Counts 4 and 5. We agree and accept the states concession. Accordingly, we reverse and remand defendants conviction on Count 4. The guilty verdict for Count 5, which the trial court merged into Count 4 and therefore disposed of without a conviction, must also be reversed and remanded.
Counts 4 and 5 reversed and remanded; remanded for resentencing; otherwise affirmed.
FOOTNOTES
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. Defendant was acquitted of Driving Under the Influence of Intoxicants, ORS 813.010 (Count 8).
PER CURIAM