Argued and submitted June 13, 2012; resubmitted January 7, 2013.
On review from the Court of Appeals.[*] (CC 200904318; CA A142469)
Susan Fair Drake, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender.
Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Defendant was charged with first-degree burglary, which occurs when a person "enters or remains unlawfully" in a dwelling "with an intent to commit a crime therein." See ORS 164.225; ORS 164.215. At trial, defendant argued that the state should be required to elect whether it intended to proceed on the theory that he entered the victim's home unlawfully or on the theory that he remained in her home unlawfully. Alternatively, relying on State v. Boots, 308 Or 371, 780 P.2d 725 (1989), cert den, 510 U.S. 1013 (1993), defendant requested an instruction that at least 10 jurors had to agree on one (or both) of those theories. The trial court denied both requests, and the Court of Appeals upheld the trial court's rulings. State v. Pipkin, 245 Or.App. 73, 80, 261 P.3d 60 (2011). We allowed defendant's petition for review and now affirm the Court of Appeals decision and the trial court's judgment.
The indictment in this case alleged that, on or about a specific date, defendant "did unlawfully and knowingly enter or remain" in the victim's home with an intent to commit a crime therein. At trial, the evidence permitted the jury to find that defendant had entered the victim's home unlawfully. It also permitted the jury to find that defendant had entered the victim's home lawfully but had remained there unlawfully after the victim told him to leave. Finally, there was evidence that defendant intended to commit the crime of menacing or harassment when he entered the victim's home and also when he remained there.
At the close of the case, defendant asked the trial court to require the state to elect the theory on which it wanted to proceed -- whether he had entered the victim's home unlawfully or whether he had remained there unlawfully. Alternatively, defendant asked the court to instruct the jury that at least 10 of its members had to agree on one (or both) of those theories. The trial court denied both motions. It ruled:
"All right. With regard to the phrase 'enter or remain unlawfully, ' I'm going to deny the motion to require an election by the state. I'm also going to deny the request for a Boots instruction with regard to that. I note that the statute, ORS 164.205(3), defines the phrase 'enter or remain unlawfully' as a single phrase that has its own definition. So it makes no distinction. It is actually one thing. So I don't think there's an election to be made under the law there."
Consistently with that ruling, the trial court did not give defendant's requested instruction. Rather, it instructed the jury that, to establish that defendant had committed the crime of first-degree burglary, the state had to prove that defendant "entered or remained unlawfully in the premises described in the charge." The jury found defendant guilty of first-degree burglary, and the trial court entered judgment accordingly.
On appeal, the Court of Appeals affirmed the trial court's judgment. It reasoned that, as a matter of legislative intent, entering and remaining unlawfully are two ways of proving a single element of first-degree burglary -- unlawful presence in a dwelling -- and that Article I, section 11, does not require jury concurrence on alternative means of proving a single element. Pipkin, 245 Or.App. at 79-80. We allowed defendant's petition for review to consider the level of factual specificity on which either state statutes or the state constitution requires jury agreement. We have addressed that issue in Boots and three other cases: State v. King, 316 Or 437, 852 P.2d 190 (1993); State v. Lotches, 331 Or 455, 17 P.3d 1045 (2000), cert den, 534 U.S. 833 (2001); and State v. Hale, 335 Or 612, 75 P.3d 448 (2003), cert den, 541 U.S. 942 (2004). Those four cases address two conceptually distinct situations, and it is helpful to distinguish them.
One situation occurs when a statute defines one crime but specifies alternative ways in which that crime can be committed. Boots and King addressed that situation. In King, for example, a statute made it a crime to drive either under the influence of intoxicants or while having a blood alcohol content of .08 or higher, and the question was whether 10 members of the jury had to agree on one of those alternative ways of committing that crime. As this court explained in King, the answer to that question turns initially on what the legislature intended. 316 Or at 441-42. If the legislature intended that each of those alternatives is a separate statutory element, then jury concurrence is required on each element. Id. at 446. If, however, the legislature intended that the alternative ways of committing the crime are different factual ways of proving the same element, the remaining question is whether the constitution prohibits that legislative choice. See id. at 447.
The other situation arises when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime. An indictment, for example, might charge one act of statutory rape, but the evidence may disclose multiple, separate occurrences of statutory rape. See State v. Reyes, 209 Or 595, 622, 303 P.2d 519, 304 P.2d 446, 308 P.2d 182 (1957) (describing that situation). Hale and Lotches arose in that context. Ordinarily, a defendant faced with that problem can ask the state to elect the occurrence on which it wishes to proceed and, in that way, limit the jury's consideration to a single occurrence. See, e.g., State v. Lee, 202 Or 592, 276 P.2d 946 (1954); State v. Ewing, 174 Or 487, 496, 149 P.2d 765 (1944). Alternatively, Hale and Lotches hold that a defendant can ask for an instruction requiring jury concurrence on one of the several occurrences that the record discloses.
This case presents the first situation. ORS 164.225 specifies that a defendant can commit the crime of first-degree burglary by entering or remaining in a dwelling unlawfully with the intent to commit a crime therein. In determining whether 10 jurors must agree on one of those statutory alternatives, we look initially to Boots and King, the two decisions from this court that addressed a similar issue. Because the parties read Boots and King differently, ...