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State v. Payne

Court of Appeals of Oregon

July 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVEN PATRICK PAYNE, Defendant-Appellant.

          Submitted March 9, 2018

          Douglas County Circuit Court 16CR20854; George William Ambrosini, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Affirmed.

         Case Summary: Defendant appeals a judgment of conviction one count of menacing, ORS 163.190, assigning error to the trial court's failure to require the state to elect a single factual occurrence that constituted the menacing charge, and to the trial court's failure to instruct the jury that it must concur on which factual occurrence constituted the count of menacing. Defendant argues that because the jury could have found that defendant committed menacing during three separate occurrences, the trial court should have required the state to elect a single factual occurrence or instructed the jury that it must agree upon the factual occurrence that constituted the crime. Held: The term "election" or "motion to elect" have previously been used imprecisely. A review of how those terms have been used show that they have been applied at two different points in litigation, serving very different purposes-one ensures a defendant's right to notice, and the other ensures jury concurrence. When an indictment is suffcient to sustain a demurrer, but not sufficient to provide a defendant notice, a defendant may move for the court to require the state to elect a specific incident constituting the charges or move to discover the state's election of the specific criminal acts that the state will prosecute at trial. When a defendant has requested assurances that the jury limit its consideration to the elected factual occurrence, mere [298 Or.App. 412] argument by the parties is insuffcient to ensure that the jury only relied on certain evidence in reaching its verdict. A trial court may choose from three different methods to ensure the jury verdict is based on a discreet factual situation: the court may give a combination of jury instruction, a statement of issues, or a general verdict with interrogatories. The controlling case on unanimity for menacing, ORS 163.190, State v. White, 115 Or.App. 104, 838 P.2d 605 (1992), held that a conviction for menacing does not require unanimity as to which occurrence constituted the act of menacing. Defendant did not invite the Court of Appeals to reexamine the holding in White nor did defendant argue that the Supreme Court's holding in State v. Ashkins, 357 Or. 642, 357 P.3d 490 (2015), may be in conflict with the reasoning in White. Because White controls in this case, the trial court did not err in denying the motion to elect, or in failing to deliver a concurrence instruction.

         [298 Or.App. 413] JAMES, J.

         In Oregon criminal trials, jury concurrence is necessitated in two situations. "One situation occurs when a statute defines one crime but specifies alternative ways in which that crime can be committed." State v. Pipkin, 354 Or. 513, 516, 316 P.3d 255 (2013). The other situation occurs "when the indictment charges a single violation of a crime but the evidence permits the jury to find multiple, separate occurrences of that crime." Id. at 517. In that second scenario, decisions by this court, as well as the Oregon Supreme Court, have indicated that a party can address the issue either by requesting a jury concurrence instruction, or alternatively, "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." Id. (emphasis added). Unfortunately, the term "elect" and "motion to elect" have been used in caselaw to refer to different motions, made for different purposes, at different stages of litigation, potentially resulting in confusion. Also, cases describing precisely how a concurrence election is to be made, or what a trial court is obligated to do when faced with a motion to elect that is not concomitantly accompanied by a requested jury concurrence instruction, have been few. This case presents an opportunity to offer some clarity in the area.

         In this case, defendant appeals a judgment of conviction on one count of menacing, ORS 163.190, raising two assignments of error. First, defendant raises a challenge to the trial court's failure to grant defendant's motion to require the state to elect a single factual occurrence that constituted the count of menacing. Defendant raises that issue asserting that it was preserved in the trial court, and the state does not contest preservation. Second, defendant raises a plain-error challenge to the trial court's failure to instruct the jury that it must concur on which factual occurrence constituted the count of menacing, acknowledging that he did not request a concurrence instruction. As we discuss below, we ultimately reject both assignments of error. Because we held in State v. White, 115 Or.App. 104, 838 P.2d 605 (1992), that the crime of menacing does not require an election of a single factual occurrence, and defendant does not challenge that decision in this appeal, both defendant's [298 Or.App. 414] preserved and unpreserved claims must fail. Accordingly, we affirm.

         The relevant facts are procedural in nature. The charging instrument alleged that defendant "did unlawfully and intentionally attempt to place [the victim] in fear of imminent serious physical injury" on a particular date in a particular county, but it did not specifically identify which occurrence constituted the crime.[1] Immediately before trial, defendant moved to have the prosecution elect a theory of what action formed the basis for the menacing charge. The state declined to make an election at that time, stating that it would make an election if, after the evidence was presented, there was reason to do so. During the state's opening statement, the state told the jury that defendant was "charged with Menacing [constituting] domestic violence because of his threats to kill [the victim] and bury her if she talked to police." During its case in chief, the state presented evidence that defendant, the victim, and their son were traveling in the victim's car together. Defendant was driving. At some point during their car trip, defendant and the victim stopped at a store to buy beer, wine, and snacks. They began traveling again, and defendant began to drink the beer that had just been purchased. Defendant became agitated. As a result of his agitation, he and the victim began to argue about the language defendant was using in front of their child. Defendant needed to use the bathroom and pulled off to a rest stop. After defendant used the bathroom, the victim suggested that she drive because she had not been drinking. Defendant refused to allow the victim to drive, saying that he would leave without her if she did not get back into the car. The victim returned to the vehicle. After she did so, defendant threatened to put the car into reverse and crash into something to kill everybody in the vehicle. Defendant then put the vehicle into reverse and accelerated backwards at a high rate of speed. The victim grabbed defendant's face to try to get him to stop accelerating backwards. He did stop accelerating backwards, but then grabbed the victim and violently attacked her.

         [298 Or.App. 415] After the attack was over, the victim exited the vehicle. Defendant informed the victim that he would take the child and leave without her if she did not return to the car. The victim returned to the car. Defendant proceeded to drive the three of them home. On the drive home, defendant told the victim he had a knife and a gun. The victim never saw the gun but did see the knife. Defendant told the victim that she should not contact the police or he would kill her, dispose of her body, and burn down her house. Over the course of the drive home, defendant threatened the victim. Defendant drove to his house, he exited the car, and the victim departed for her house with their son. At some point after, defendant's mother arrived at the victim's house, and together they called the police.

         The victim and child both testified. The child testified only that defendant drove quickly backwards in the vehicle, and violently attacked the victim after she grabbed him. At the close of evidence, while working out jury instructions, defendant again requested that the state make an election as to the occurrence that constituted menacing. The state argued that it would be hard to "encapsulate" the conduct that constituted menacing, but specified that "having the gun and making threats[, ] *** [d]riving and making threats[, ] *** [t]he manner in which [defendant] was driving[, ] *** [and] [h]is statements to [the victim]" constituted the count of menacing.

         Ultimately, the trial court denied defendant's motion to require the state to elect, and accordingly, no election was made in argument before the jury. Defendant thereafter did not request a concurrence instruction, and the trial court did not give a concurrence instruction. During closing arguments, while in the context of arguing why self-defense was inapplicable in this case, the state said "[defendant's] driving in a manner that was very scary to [the victim]. In other words, peeling out and going backwards saying he's gonna crash the car." Defendant was found guilty on all counts and appealed.

         On appeal, defendant assigns error to the trial court's failure to require the state to elect a single factual occurrence that constituted the count of menacing, and to the trial court's failure to instruct the jury that it must concur on which factual occurrence constituted the count of menacing. [298 Or.App. 416] Defendant argues that because the jury could have found that defendant committed menacing during three separate occurrences, the trial court should have required the state to elect a single factual occurrence or instructed the jury that it must agree upon the factual occurrence that constituted the crime. Defendant acknowledges that he did not request a concurrence instruction but asks this court to exercise our discretion to review the trial court's failure to give a concurrence instruction as plain error. The state argues that the offense of menacing is not necessarily committed by a specific, discrete act but can consist of a series of acts and statements, that, when considered together, constitute the crime of menacing. The state argues that because the state's evidence below showed that because the aggregate of the occurrences that formed the basis for the menacing charge constituted a single offense, no election is necessary for the crime of menacing. The state also argues that defendant's assignment of error regarding the concurrence instruction is not plain error.

         We address defendant's assignment of error regarding the trial court's failure to require the prosecution to elect a single factual occurrence first. At the outset, it is important to recognize that we have historically used the term "election" or "motion to elect" somewhat imprecisely in the past. A review of how we have used those terms shows that we have applied them at two different points in litigation, serving very different purposes. We begin, therefore, by cleaning up the terminology in this area.

         A "motion for election" made early on in litigation, often pretrial, is conceptually similar to a civil motion to make more definite and certain under ORCP 21 D.[2] Oregon [298 Or.App. 417] has no formal criminal procedure code, and hence there is no direct procedural equivalent to ORCP 21 D in criminal practice. The closest conceptual equivalent would be a motion for a bill of particulars. See State v. Darlene House & James House, 260 Or. 138, 142-43, 489 P.2d 381 (1971) (explaining that the purpose of such a motion is "to provide the defendant with further information respecting [a] charge [against him] so as to enable him to prepare his defense and avoid prejudicial surprise at trial"). Of note, a bill of particulars-in jurisdictions that allow for them- requires that "an indictment must be sufficient on demurrer before any right to a bill of particulars arises." Id. at 142. In Oregon, we do not have a statute expressly authorizing such a motion. However, our case law has described situations in which an indictment is sufficient to withstand a demurrer but still may fail to give a defendant adequate notice of the precise charges against him. In those instances, Oregon common law has created the "motion for election" that gives a defendant more information as to the basis for the charges against him.

         This type of motion for election was best described in State v. Hale, 335 Or. 612, 75 P.3d 448 (2003). There the Supreme Court addressed situations in which an indictment is sufficient to withstand a demurrer because it follows the statutory language but is insufficient for the purpose of notice for the defendant. The defendant was charged with 13 counts of aggravated murder and other noncapital crimes.

"Defendant *** demurred to the form of the indictment in this case on the ground that the six aggravated murder counts that alleged that he had committed murder to conceal the crime of third-degree sexual abuse and to conceal the identity of the perpetrator of the crime of third-degree sexual abuse * * * were impermissibly vague."

Id. at 617-18 (footnote omitted).

Specifically, the defendant argued that he was "entitled to notice of the particulars of the offenses he is alleged to have committed. The offenses of sexual abuse [298 Or.App. 418] in the third degree *** are not charged anywhere in the indictment.
"The indictment does not say who is or were the victims of the offense of sexual abuse in the third degree. That's not set forth anywhere in the indictment. There are three decedents who are all potential victims of that crime. There's also Jonathan ...

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