68

On appellant’s petition for reconsideration filed April 1, 2020; reconsideration allowed, former disposition withdrawn, opinion (

,

) modified and adhered to as modified, conviction on Count 2 reversed and remanded, remanded for resentencing, otherwise affirmed February 3; petition for review denied July 15, 2021 (

)

STATE OF OREGON Plaintiff-Respondent, v. NICHOLAS PATRICK MERRILL, Defendant-Appellant. Multnomah County Circuit Court 16CR54578; A165105

Defendant appealed from a judgment of conviction for felony fourth-degree assault constituting domestic violence, ORS 163.160 (Count 1), and felony strangulation constituting domestic violence, ORS 163.187 (Count 2). The jury returned a unanimous guilty verdict on Count 1 and a nonunanimous verdict on Count 2. On appeal, defendant’s first and second assignments of error both concerned the interplay between the strangulation and fourth-degree assault statutes. The Court of Appeals original opinion, State v. Merrill,

,

(2020), addressed defendant’s arguments as to merger of his convic- tions on Counts 1 and 2, rejecting his first two assignments of error. In a petition for reconsideration, defendant also raised supplemental assignments of error challenging his convictions by nonunanimous verdicts for Count 2, to which the state conceded. Held: Defendant’s challenge to the trial court’s nonunanimous instruction on Count 1 is foreclosed by State v. Flores Ramos,

,

(2020). The state’s concession to the supplemental error for Count 2 is accepted per State v. Ulery,

,

(2020). Because defendant faces the possibility of a retrial on Count 2, and if convicted, the merger issue could arise on remand, the former opinion is not withdrawn. Reconsideration allowed; former disposition withdrawn; former opinion mod- ified and adhered to as modified; conviction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.

Kenneth R. Walker, Judge. 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. Cite as

(2021) 69

JAMES, J. Reconsideration allowed; former disposition withdrawn; opinion modified and adhered to as modified; conviction on Count 2 reversed and remanded; remanded for resentenc- ing; otherwise affirmed. 70 State v. Merrill

JAMES, J.

Defendant appealed from a judgment of conviction for felony fourth-degree assault constituting domestic vio- lence, 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 inter- play between the strangulation and fourth-degree assault statutes. In State v. Merrill,

,

(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 con- victions 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 resolu- tion of Ramos v. Louisiana,

,

,

(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 ver- dict 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 nonunani- mous verdict on Count 2. On appeal, he contends that issu- ing 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 con- cedes 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 mer- its as plain error. State v. Ulery,

,

(2020) (“[D]efendant has a significant interest in a new trial before a jury properly instructed that it must be unan- imous to convict. And, though the state has a competing interest in avoiding the expense and difficulty associated with a retrial, the balance weighs in defendant’s favor.”). Cite as

(2021) 71

Accordingly, we modify our original opinion to reverse defendant’s conviction on Count 2. Defendant’s challenge to the trial court’s nonunan- imous instruction on Count 1, where the jury ultimately returned a unanimous verdict, is foreclosed by State v. Flores Ramos,

,

(2020). Our original opinion addressed defendant’s argu- ments as to merger of his convictions on Counts 1 and 2. Because defendant faces the possibility of a retrial on Count 2, and if convicted, the merger issue could arise on remand, we do not withdraw the opinion. Even when a disposition obviates the need to address an assignment of error, we may nevertheless address questions of law that may still be at issue after the case is remanded. See, e.g., Westwood Construction Co. v. Hallmark Inns,

,

, rev den,

(2002) (addressing ruling concerning the availability of certain type of attorney fees under ORS 87.060 as likely to arise on remand); State v. McFeron,

,

(2000) (address- ing propriety of jury instruction concerning ways in which state may prove intoxication because it was likely to arise on remand); OR-OSHA v. Roseburg Lumber Co.,

,

(1997) (addressing agency’s con- struction of legal standard set forth in administrative rule because it was likely to arise on remand). Reconsideration allowed; former disposition with- drawn; opinion modified and adhered to as modified; con- viction on Count 2 reversed and remanded; remanded for resentencing; otherwise affirmed.